by The blogosphere and mainstream media have been abuzz with commentary on Christian Legal Society v. Martinez. Judging by the spate of amicus briefs filed in support of CLS by religious organizations, I may be off base here, but: I confess that as a legal scholar and a Christian, I feel conflicted about this case.
On the one hand, U.C. Hastings’ policy seems to represent political correctness run amok. In a recent interview, the U.C. Hastings Dean suggested that, under the school’s non-discrimination policy, the Black Law Students’ Association would have to admit KKK members and the B’nai B’rith chapter would have to admit Muslims. Presumably the Muslim Law Students Association would have to admit Christians, and so on. As Justice Antonin Scalia observed during oral argument, “It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership. . . To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”
Moreover, I think the CLS and its amici probably have the better side of the legal arguments on the establishment clause and free speech issues. Religion occupies a unique place in our Constitutional order. We should be very wary of policies that would require religious organizations to give up their core distinctives in order to participate equally in the public square with other organizations.
Without doubt, a ruling in favor of U.C. Hastings could jeopardize not only ministry organizations that operate on secular university campuses, but also religious educational institutions, such as Christian colleges, that benefit in some way from federal funds. This case could represent a substantial wedge between access to government benefits and religious organizations that adhere to “discriminatory” views of human sexuality or belief in God. It is not entirely unreasonable – although it would be many steps removed from the Martinez case – to envision a world in which religious people who hold traditional views about God and sexuality would be precluded from access to public programs such as public safety, health and disability benefits. This of course happens in many parts of the world today.
And yet, what bothers me from my Christian vantage point is that this particular case is about official government recognition and access to government funding for a local extension of the Church. U.C. Hastings is not seeking to prohibit Christians from meeting together or from expressing their personal views. Rather, the school is withholding official recognition and access to the funds and facilities that are available to recognized student organizations.
Why do we expect Caesar to favor the ekklesia? Why does it seem so easy for us to mobilize resources all the way to the Supreme Court when the issue involves preserving Christianity’s historical privileges in American political culture? Why should an organization like the Christian Legal Society fight so hard for official status and the paltry funds that accompany that status?
It also bothers me, to be honest, that this case seems to represent another round in the war between evangelicals and homosexuals. I am not a revisionist concerning Christian sexual ethics. (My views on Christian sexual ethics are similar to those expressed by Richard Hays in his book The Moral Vision of the New Testament). However, I deeply regret the animosity between evangelicals and the gay community. Although the CLS is not an “anti-gay” organization, I wonder about pursuing litigation that in the public mind inevitably will represent another titanic clash between Christians and gays.
I have great respect for the people involved in the CLS’ case, so my concerns shouldn’t be taken negatively. For me, however, this case raises a tension between older models of cultural engagement, which prize high-level constitutional litigation, with a missional perspective that views the Church in American society as a community in exile. I hope the Court rules in CLS’ favor, but in my heart I wish the dispute had been resolved by some other means.
I don’t think CLS made a deliberate decision to “pursue litigation” that raised the specter of homophobia. In my own conversations with CLS leaders, it seems that the conflict with gays is largely abstract (as few, if any, openly gay students have shown an interest in CLS leadership), and is initiated by university administrations once they become aware that the CLS statement of faith requires discrimination against those who fail to affirm a biblical understanding of sexual morality. In practice, I’m told, the conflict is much more pervasive between CLS and would-be student officers who cohabitate before marriage. Obviously, the implications for gays are more noticeable these days, and that’s what has triggered the exclusion of CLS in several instances. I’m not sure what else CLS should’ve done once it was obvious that its statement of faith was going to get them booted off campus. At other schools, I know that CLS has pursued informal means of settling the disputes, with some success. It doesn’t seem to have worked in the Hastings case. It’s beyond a question of funds. It’s also about visibility and the ability to do missions work at the law school as a part of the community.
There are also some odd things about the Hastings case. For one thing, the “all comers” policy, seemingly crafted in the effort to justify denying recognition to CLS, makes very little sense as a means of promoting diverse views and association. For another, my understanding is that the university’s position is that even though CLS isn’t officially recognized, it can still meet on law school premises, etc. But in the oral argument yesterday, Michael McConnell suggested that in practice even that hasn’t been allowed: when CLS has asked for a room, they’ve been given the run-around, and haven’t ultimately been allowed to meet.
If that’s true (and McConnell isn’t someone who would make such stuff up), that treatment, together with the law school’s constantly shifting policy (shifting in what looks like a strenuous effort to craft a policy that excludes CLS), creates the appearance of active hostility by the law school to CLS. But although that sort of hostility might not be surprising in many contexts, it is a bit surprising in this case, I think, given that the dean during much of the course of this litigation (though not at the outset, when recognition was denied and litigation began) was, if I’m not mistaken, Nell Newton, now dean of Notre Dame Law School.
I don’t know Dean Newton, but it seems unlikely that someone who would soon be moving to lead at Notre Dame would put up with administrative shenanigans calculated to exclude CLS. At least I would hope she wouldn’t. So as I said, there are some odd things about this case.
It is a difficult case, I think. I’m not sure why the “all comers” policy would be unconstitutional, assuming it was applied evenhandedly (and I gather from the oral argument that there is some dispute on that front). I think it’s a horrible policy, as Steve suggests, for a law school that purports to take diversity seriously, but that doesn’t necessarily make it unconstitutional. If the school’s attitude was, “Look, we don’t want to get into the messy business of distinguishing between belief-based discrimination and status-based discrimination, and so we’re just going to impose a simple bright-line rule,” wouldn’t that be constitutional? Again, this assumes that they did it evenhandedly.
Rob’s view is a common one, I think: assuming the policy really is what Hastings (sometimes) says it is, i.e., all comers, then it’s a very dubious policy but not unconstitutional. I have a different view, but without elaborating, I’d say this: some of the difficulty and disagreement derives from the fact that “freedom of association” is a murky, underdeveloped, undertheorized right.
More specifically: If you think that, basically, freedom of association is just an incident of freedom of speech, and if you also think that “viewpoint neutrality” is the essence of freedom of speech, then it may seem that the Hastings policy is ill-advised but not unconstitutiional. That’s not an implausible view, I suppose; maybe this is how Rob is thinking about the matter. But if instead you think that freedom of association, whether or not derived from freedom of speech, is a right in its own right, so to speak, then the crucial question is not whether the Hastings policy is viewpoint neutral (which may be the appropriate question for speech regulations) but whether it interferes with . . . freedom of assocation. And it seems to me that it does– directly and blatantly.
I must confess at the outset that I’m a seminary student, though I’ll be heading to law school this fall after completing my M.Div. That is, my comment may strike some as abstractly theological, but I don’t believe my perspective is beside the point.
It seems to me that Christians, first of all, must believe they have a truth that is good for people, for society, and for government. Wherever and whenever they can – without sinning – they will seek to spread the truth. This compulsion to speak the truth sometimes conflicts with government demands, and when it does, Christians must continue witness (e.g. Acts 4:19-21). And when legal constructs exist that may help Christians overcome opposition, we ought to use them (Acts 25:10ff.; think also of St. Augustine in City of God).
Christians can’t expect Caesar to aid the church. But when Caesar has composed a Constitution that, on one reading (and probably the best one), protects the rights of religious and ideological minorities to speak, exercise, and organize, Christians should by all means point out the fact. If Caesar stops paying attention to that Constitution, or re-writes it all together, Christians must still speak, whether that means fines, imprisonment, or death. The fact is, we’re not there yet, and as long as we have Constitutional means to protect Christian and other religious speech, we ought to do so.
As for the acrimony between Christians and LGBT persons, I share your concern. I doubt very much that a legal case will much harden the divide, but protecting the place of Christianity (and other faiths, by implication) in the public sphere may, in the long term, be the best for this situation too. Perhaps Christians will learn to reach out in love sooner than later.
Good comments all. In response to the “pragmatic” question that Rob and Benjamin commented on: yes, Christians can and should at times use available legal processes to protect the right of free association. But — and I think this is a big But — my feeling is that in our acrimonious culture that option should be exercised only in extreme circumstances.
Let’s say that, for example, instead of litigating, the U.C. Hastings chapter decided to live with the Dean’s decision for a while. Let’s say that the group held its “official” meetings off-campus, without using student organization funds. And let’s say that the group decided that part of its mission for the year would be to pray for the Dean and the Administration and to seek out one-on-one meetings over coffee or a beer with students involved in the LGBT organization in order to foster better understanding between the groups.
Maybe at the end of a year or two U.C. Hastings would change its official policy, or maybe not. But I can’t help thinking that this sort of incarnational approach is how the Holy Spirit usually changes both people and institutions. What do we have instead? It seems to me that we have another high profile culture war showdown that, however the Court rules, is more likely to further embitter and divide than to produce lasting change.
David, thanks for starting this thoughtful conversation.
(Full disclosure: I currently serve as the Director of CLS Law Student Ministries in addition to and as part of my role on the Regent Law faculty).
First, Rob’s take on the facts is correct: no CLS chapter has ever (to my knowledge) had a conflict with a practicing homosexual desiring to sign the statement of faith or participate in leadership. These cases arise due to the close scrutiny law school administrations give to religious organizations’ bylaws in the organization approval process.
No one at Hastings complained; there were no acts of discrimination or animosity. The CLS policy does not address sexual orientation; rather it lists quite a wide variety of behaviors it considers out of bounds for professing Christians. CLS group meetings and activities are, as a matter of policy, open to all who desire to attend, regardless.
If a student wants to move from participation in CLS meetings to membership or leadership, he or she must sign the statement of faith. Again, CLS takes the position that such a statement has ethical implications as well. Rob is correct that we have, in the past, asked leaders to step down, take a break, or reconsider their role due to cohabitation, anger issues, or the like. Never has a case of homosexual conduct come up.
(By the way, at four law schools that I know of, homosexual groups like Outlaw are targeting CLS for harassment. This sometimes takes the form of badmouthing CLS to the law school administrators, but often involves public slander and disruption of meetings and activities. Never have I had reports of anything close to this kind of conduct directed from CLS chapters toward gay rights activists on campus).
When a school refuses to recognize a chapter, it disappears from campus life– no announcements via email systems, no booth at the orientation fair, no announcements on classroom chalk boards or student org bulletin boards, no web presence. It is not a “student organization.” That is what matters. Funding is virtually meaningless in this context (though to call this funding “state assistance” is a stretch– all the student groups at Hastings are funded by student activity fees). The problem is that the group is off the map, period.
So, sure, these students could all gather and pray for the dean and the school, as they did, and seek to work it out amicably, as they did, and approach the gay groups over a beer and to make sure they had done nothing specifically to offend, which they did. But after a semester, there is no one left to do any of this, because all but the leaders will have disappeared. You profs know the law school environment. If a group cannot maintain some sort of presence on campus, students won’t attend meetings. The group is forgotten. It’s tough enough at schools that are not hostile to Christianity, but at hostile schools like Hastings, this sort of action depletes and demoralizes a student group.
It is also pretty clear that the Hastings administration did not and does not apply an “all-comers” policy to any other group or constitution, as the questioning regarding the La Raza group revealed.
I do agree with David’s view of the work of the Holy Spirit (!), and I believe He is in charge, even in situations like this. I would fully embrace his suggested application as the mandatory approach in disputes between believers and as essential to all disputes involving inter-personal conflict. Our CLS groups get de-funded, de-recognized, and challenged across the country on a regular basis, and our approach– even with institutions, which are, after all, run by human beings made in the image of God– is never to litigate first. In most cases, it is resolved by prayer and engagement with individual decision-makers on the issue.
Yet I don’t agree that our unfortunate culture-war mindset and the current acrimonious cultural climate mitigates against using the courts except in extreme circumstances.
My take on the obligation of Christian citizenship includes submission to authority, speaking truth to those in power, and intelligent participation. Failure to do so is sin. As against the state, we have no obligation to turn the other check. In this case, a state-run institution has wronged an innocent, faithful group of students, whose only misstep is a view (and potential application) of Scripture that is not en vogue with those in power. This, by the way, offends some gay rights groups in the same way it offends me, even though it causes acrimony with others. I incline toward the view that one should not make a decision about whether to sue in a case like this based upon the incidental acrimony it may cause, or on predictions of whether the case (six years hence) may or may not become high profile.
At Washburn Law recently, the CLS students were accommodating, and allowed someone to lead their Bible study who did not agree with the statement of faith. His Bible study confirmed that he held heterodox views. When he asked to lead a second Bible study, the CLS students said, “No, once was enough. You can attend the next Bible study but not lead it.” The student then lodged a religious discrimination complaint against CLS with the law school administrators–who derecognized CLS. CLS tried to work it out, but the school only restored recognition after CLS sued. Were the CLS students wrong to say that the non-Christian student could not lead the second Bible study, even when acrimony resulted? Should they have slunk off campus as if to admit that their faithfulness to Scripture disqualified them from participation in public life? I can’t see a justification for doing so, and I think it might even be cowardly.
I understand the poor job we evangelicals have done articulating our cultural positions, and I understand David’s well-founded concerns about appearances. We need to be wise in how we use the courts, to be sure. I’ve written on the dangers of “a kinder, gentler, Christian instrumentalism.” But this case seems to be precisely the circumstance in which religious groups should hold fast, for their own sake and for the sake of others coming behind us.
Thanks again to David, Rob, Steve, and Ben for their thoughtful posts on the topic.
Hi Mike. Thanks for the thoughtful comments. Don’t have time for a longer response at the moment, but let me throw this out there: for me this isn’t just a question of how evangelicals articulate cultural positions. It’s about a mistaken theology of culture and mission. In the thirty or so years that evangelicals have spearheaded the “hot” culture wars, what has been gained and what has been lost? Why haven’t we developed a rich and robust social theory ala CST? Why is the prevailing mode of cultural engagement “on the ground” in our churches typically no different than the mode, rhetoric, and politics of conservative talk radio? I think it’s at least in part because of the view that the Kingdom of God involves the Christianization of secular government. Kuyperianism for us has become a form of Constantianism.