No Discrimination Allowed: A Campus Organizer's Defense of the CLS v. Martinez Ruling

by Lyz Liddell

I suppose I should first point out that I am not a lawyer; I am a campus organizer, and I'm applying a strictly common-sense reading of the issues at stake in this case. The issue in the recent U.S. Supreme Court case Christian Legal Society v. Martinez was whether a public, state-funded institution may deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints. The court's decision was in favor of Martinez and Hastings Law School, declaring that Hastings had the right to equally apply its non-discrimination policy to all student groups.

The court's decision was ultimately based on some examinations of lower-court findings and assorted other legalese and semantics (Check out ScotusWiki). That said, the big question that surrounded the case is whether CLS should have been allowed to discriminate. At first glance, there are some reasons to think that this might be acceptable: after all, a small minority group might worry that it could be taken over by those who don't share its core values, or have its message diluted by a large membership of varying viewpoints.

I call bullshit. As a campus organizer who works with small minority groups (most hated minority in America, wouldn't vote for President, yadda yadda, you've all heard the statistics), CLS's claim comes across as, at worst, a group of wannabe victims craving the legal protection to do whatever they want, at best suffering from overactive paranoia of those they want to exclude.

CLS appears to be bringing a legal suit against ghosts. If students were prone to placing moles in other organizations with the intent of taking over, one would think that in the ten-year history of the SSA, with hundreds of groups coming and going, we would have seen at least one case of a group being taken over by hostile Christians in order to crush the atheists. After all, we are the most hated minority in the U.S. (see above). Right? Well, it hasn't happened, and to be honest I've seen some groups that were pretty ripe for takeover.

When it comes right down to it, students have better things to do than to hang out with people that don't want anything to do with them in order to try to take over their student groups. And if CLS is really worried about it, they should adopt policy of charging a $20/year membership fee, which most universities allow. No one in their right mind is going to pay money to waste their time taking over a student group they don't agree with.

Detractors of the court's decision have argued that Hastings Law School was discriminatory in disallowing CLS official status on campus, as it was the only group to be denied official status because of its membership requirements. This view appears to be ignoring the other key element at play: CLS is also the only group applying for recognition that has a discriminatory clause in its membership requirements. Were Hastings to allow CLS an exemption from that policy, it would actually be favoring this one group above all others: the fringe Christian group would be allowed to block certain individuals from membership, but the atheist group, the Muslim group, the philosophy club and others would not. It's difficult to argue that Hastings was applying its nondiscrimination policy unequally simply because it said "no" to the group that wanted an exemption from the policy.

If Hastings had chosen to grant a "religious views" exemption to CLS, it creates a problematic precedent. Of course, at that point, any other religious group who wanted an exemption ought to be able to get one (else Hastings would be discriminating against them, right?). What about the atheist group on campus? Technically not "religious" in the traditional sense of the word - so does Hastings say that the religious students can discriminate but atheists and other nontheists cannot? Or do they allow the atheists to disallow religious students? How about the neo-Nazi group that doesn't want to allow Jewish students? Should Hastings offer exemptions from the racial clause for KKK groups? It's easy to maintain a policy that's equally applied, but once you start handing out exemptions, the measure of what group is eligible for an exemption becomes considerably more subjective, and can lead to real discrimination.

One of the benefits CLS would have gained with official recognition is access to the pool of funds available to student organizations. Those funds are distributed in a viewpoint-neutral manner (see Wisconsin v. Southworth), so CLS would have been able to use its funds for anything from bible studies to hosting anti-gay, anti-atheist speakers and the like. This is the right of every recognized student group at a public institution. However, the funds for those activities are drawn from a pool that every student is required to pay into as an "activities fee" or similar fee paid alongside tuition. Currently, students' funds may end up supporting events they don't approve of, but they are not barred from participation. CLS would have set a precedent in which they could use those funds from the entire student body, including those students barred from membership in the organization, to pay for events that certain students would be barred from. A gay student, for example, might be forced to pay for an anti-gay event where he would not be allowed to attend even to defend himself.

That exchange of ideas is another valuable commodity that would be lost were CLS to be given permission to discriminate. Sure, they could theoretically still have events that were open to the public and welcome non-Christians to challenge their views…but I find it unlikely, given that they've just pushed a lawsuit to the Supreme Court in an attempt to ensure that they don't have to.

But - even given all these reasons - the most important reason I feel that the Supreme Court is correct in upholding the lower courts' rulings on this case is that they maintain the right of the individual over the right of the group. Given that CLS has not (and very likely will not) suffer harm by not barring gays and non-Christians from their group, granting them a legal exemption to a policy that isn't hurting them sets up a very dangerous precedent wherein a group's right - to determine its membership, to receive school funding, even to maintain its core values - is given precedence over the right of any one individual. Much as most of us would agree that corporations' interests shouldn't take precedence over individuals, no group should have rights that overshadow those of an individual.

Lyz Liddell is the director of campus organizing at the Secular Student Alliance, where she supports over 200 freethinking campus groups (somehow without exploding). She has watched the CLS v. Martinez case since before it rose to the Supreme Court, well aware that its rulings would have direct impact on the student groups she supports, and spent a long time considering the implications of the case before siding with Martinez.