In Defense of Discrimination: A Criticism of the CLS v. Martinez Ruling

by Frank Bellamy

Justice Stevens concludes one of his last concurring opinions with the observation that "the ... argument [the Christian Legal Society chapter at Hastings College of Law] presses, however, is hardly limited to these facts. Other groups may exclude or mistreat Jews, blacks and women �“ or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities." I agree that society need not give its support to such groups. What strikes me about this case, however, is that there is no indication that the Christian Legal Society (CLS) has mistreated, shown contempt for, or in any significant sense excluded non-christians or homosexuals.

The other party in this case is not a law student who feels that he has been excluded by CLS, it is the dean of the law school who seeks to enforce his school's nondiscrimination policy. CLS members, in violation of the policy, wish to restrict voting rights and leadership positions to students who share the organization's religious beliefs (including as it regards sexual morality). Hastings College of Law (Hastings), by its own terms, "is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices." What this suggests, of course, is that there are some discriminatory practices which are not legally impermissible, arbitrary, or unreasonable.

As 21st-century Americans, we have become so obsessed with equality and diversity that we have turned "discrimination" into an identifier of pure evil. When we hear "discrimination" our minds shut down, our blood boils, and we experience an uncontrollable urge to denounce the heretic who dares to stand against our liberal values. But as atheists, freethinkers, and intelligent people in general, we should take a step back, turn our minds back on, and remember that there is a difference between discrimination in the purely procedural sense and discrimination in the morally wrong sense. To discriminate in the procedural sense is simply to make a distinction. To discriminate in the morally wrong sense is to make distinctions based on prejudice rather than individual merit. Only the latter ought to be prohibited.

The notion of merit, central to the morally wrong sense of discrimination, is unavoidably dependent on context. It is a good thing that fire departments discriminate in hiring on the basis of physical ability. It is a good thing that the federal government discriminates by taxing on the basis of gradual income. It is a good thing that university admissions offices discriminate on the basis of academic ability. But I would not want the fire departments discriminating on the basis of income, the federal government to tax on the basis of academic ability, or university admissions offices to base admissions on the basis of physical ability.

CLS undeniably discriminates in the procedural sense. Members do give voting rights and leadership positions to people who hold certain beliefs, and deny them to others. But the relevant question is whether CLS discriminates in the arbitrary, unreasonable, morally wrong sense. Is belief in the specific religious tenants an appropriate qualification to lead or vote in an organization dedicated to loving and serving Jesus Christ? Does it seem more appropriate once we learn that CLS's most frequent activity is christian bible studies? It is difficult to imagine what could be a more appropriate qualification of leadership or voting rights in CLS than belief in its religious platform.

Some supporters of the Supreme Court's decision have argued that students who do not agree with CLS's beliefs will not actually seek leadership positions in CLS. This argument undermines their own case. Either students who don't share CLS's beliefs but still would seek to become CLS leaders were it not for the CLS policy exist, or they don't. If such students do exist, then CLS members are justified in being concerned about these nonbelieving members' potential influence on their group. If such students do not exist, then CLS is discriminating against ghosts, and there is no one for Hastings to protect from discrimination. This is one reason this case is unique: It alleged discrimination without a person claiming to have been discriminated against.

Hastings also clearly discriminates, at least in the procedural sense: the college grants recognition and specific benefits to all student organizations except one. The same questions asked of CLS must also be asked of Hastings: does the college discriminate in the morally wrong sense? Is the distinction between groups which limit voting rights and leadership positions based on beliefs and those which do not reasonable? Is it relevant to the college's purpose in supporting student groups?

The Supreme Court considered these questions and concluded that the distinction was relevant based on several unsound points. One of the purposes of a university in supporting student groups is to provide leadership opportunities to students. CLS's policies would prevent some students from gaining leadership experience in CLS. However, Hastings, like most universities, supports a large number of student groups representing a wide array of beliefs, interests, and activities. Every student, whatever his or her beliefs or sexual orientation, will be eligible to be a leader in many of them. A lesbian christian at Hastings, for example, may not be able to be a leader in CLS, but she could be a leader in the LGBT student group, and could found a Christian group supporting gay rights if she chose. Thus, allowing CLS to limit its leadership does not interfere with Hastings purpose here.

Another purpose of a college is to promote an exchange of ideas amongst students with very different worldviews, to allow students to learn from each other outside the classroom. If CLS members were trying to prevent non-christians from attending their bible studies or other events, such actions would interfere with Hastings' purpose in supporting student groups. But CLS members aren't. CLS members welcome non-christians and LGTB christians to attend their events and participate in discussion. Why, after all, would evangelical christians pass up such an easy opportunity to expose their peers to Jesus Christ, and to address their peers' questions about christianity? CLS members only wish to restrict voting rights and leadership positions, and those have little to do with the interactions of students of different worldviews�”which a university ought to promote.

Hastings has no reasonable basis for denying recognition to CLS, as recognizing and funding CLS would serve Hastings' purposes in supporting student groups as much as recognizing and funding any other group does. Whether Hastings is acting out of prejudice against a certain kind of christianity or out of a blind faith in a liberal ideal of equality, it is discriminating in the morally wrong sense. If we truly value a diversity of ideas and beliefs, then universities ought to support a variety of groups each promoting different beliefs, and each led by students holding the beliefs they are promoting. That is how we achieve the tolerance, learning, cooperation, and friendship between individuals of different worldviews that are often the best products of a university education.

Frank Bellamy is the founder and former president of the Secular Student Alliance at RPI, a former president of the Secular Student Alliance at UD, and the content manager of the eMpirical.