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AI Supports Freedoms of Expression, Religion and Association in CLS v. Martinez (April 18, 2010)
The United States Supreme Court hears oral arguments tomorrow in a case to decide whether a government ‘non-discrimination policy’ being imposed by the University of California’s Hastings College of Law to exclude recognition of a Christian law student organization at the school, based upon its Statement of Christian Faith, constitutes a discriminatory and unconstitutional deprivation of law students rights of free expression, religious free exercise and association.
WASHINGTON, DC (April 18, 2010) — Advocates International, the worldwide public interest advocacy organization of more than 30,000 Christian lawyers, jurists, law professors and law students committed to doing justice with compassion, called for prayer and solidarity in support of the freedoms of expression, religion and association being argued tomorrow morning before the United States Supreme Court by Stanford University Constitutional law Professor Michael McConnell in Christian Legal Society v. Martinez. Prayers are also requested for the questions and deliberations of the justices that they might adjudicate this vital constitutional questions in a just manner consistent with the First Amendment to the United States Constitution.
In support of Christian Legal Society’s request to be recognized without discrimination as a law student organization by the University of California’s Hastings College of Law, Advocates International (AI) also filed an amicus curiae (‘friend of the court’) brief with the U.S. Supreme Court. AI is asking the Court to defend the First Amendment rights of expression, religion and association by overturning the Ninth Circuit Court of Appeals' unpublished decision in Christian Legal Society v. Kane, which allowed University of California Hastings College of the Law to forbid its chapter of the Christian Legal Society to organize around shared religious and cultural beliefs. AI’s brief, which was one of 22 amicus briefs filed in support of reversing the Ninth Circuit’s decision, uniquely advised the Court that international law and applicable foreign law all weigh in favor of reversing the judgment below.
AI’s President Sam Ericsson and AI’s General Counsel, Sam Casey, who between them (since 1981) have been involved in almost all of the cases upon which Christian Legal Society relies in asserting their claims, said “if student organizations cannot require that their leaders and voting members actually share the group's viewpoints, freedom of association on college campuses will be stripped of all meaning. If we are to have meaningful freedom of association on college campuses, individual students must have the right to form groups around shared beliefs—and the state must not be able to dictate what those groups' beliefs should be.”
The case concerns UC Hastings College of the Law's refusal to recognize the Christian Legal Society (CLS) as a registered student group. Hastings based its refusal on the fact that even though all students may attend and participate in CLS meetings and activities, voting members and group leaders must sign a "Statement of Faith" that expresses belief in CLS' particular religious worldview. At issue is a provision stating that "[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership." The statement clarifies that "[a] person's mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership." Hastings argues that this provision violates the university's ban on "sexual orientation" discrimination, despite the fact that the provision conditions membership on changeable conduct and belief, not immutable status. Hastings' restriction on freedom of association was eventually found constitutional by the Ninth Circuit Court of Appeals on the ground that the policy was viewpoint neutral and applied equally to all student groups, even though in practice it prevented only one group, CLS, from existing with equal (or any) recognition on campus.
AI’s Sam Ericsson observed that the “Ninth Circuit's decision should deeply alarm all who care about the rights of those holding minority viewpoints on America's campuses, as it will make nearly every campus group vulnerable to takeover and dissolution by its enemies if it is adopted by the Supreme Court.” This is not a pie-in-the-sky threat, either--indeed, using the Ninth Circuit's rationale, the College Republicans could take over the College Democrats, pro-choice groups could take over pro-life groups, and atheist students could take over a Muslim group. All this, and nobody could do anything about it. The Ninth Circuit's decision would put the imprimatur of law on the establishment of a stifling, majoritarian campus culture where dissenters' voices are rarely heard. That is a frightening prospect.”
The Ninth Circuit's decision is in direct opposition to an earlier, nearly identical case from the Seventh Circuit, Christian Legal Society v. Walker. In Walker, the Seventh Circuit held that Southern Illinois University's denial of recognition to a CLS chapter was likely a violation of the First Amendment. The court made the obvious point that "[i]t would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct," and had "no difficulty concluding that SIU's application of its nondiscrimination policies in this way burdens CLS' ability to express its ideas." Since the Ninth Circuit's decision directly conflicts with the Seventh Circuit's opinion, the Supreme Court's decision in Martinez will likely resolve this circuit split.
AI wrote to inform the Court that this case presents an issue of common concern to people all over the world who, like the Christian law students in this case, face growing state denials or impermissible conditions perniciously designed to muzzle the exercise of their freedoms of speech, association and religion in cases analogous to the instant case where private religious fellowships who otherwise pose no threat to public health or safety are discriminatorily denied registration or recognition because of their disfavored religious beliefs, ideals or commitments.
The universally acknowledged freedoms of speech, association and religion set forth in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil & Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as adjudicated in analogous cases by the European Court of Human Rights, confirm the jurisprudential wisdom of the applicable First Amendment cases upon which the Christian Legal Society relies in its opening and reply briefs in asking the United States Supreme Court to reverse the judgment below.
AI’s brief was one of 22 friends of the court briefs filed in support of CLS , representing a diverse group of more than 100 organizations, including the Attorneys Generals of 14 states, and tens of millions of Americans, as well as the global legal community represented by AI’s brief. Taken together, these “friends of the court” represent a broad political and social cross-section spectrum composed all ages and faith traditions, including the Roman Catholic Church, the Jewish, Sikh, Hispanic and Islamic communities, various colleges and universities, most campus ministries in America and even Gays and Lesbians for Liberty. This case culminates an almost thirty year effort by CLS’ Center for Law & Religious Freedom to protect the freedoms of expression, religion and association from usurpation by various state actors using all manner of excuses from “separation of church and state” to their current assertion of so-called “non-discrimination” provisions to, in fact, discriminate against religious people and their ideals. As AI asserts in its brief, the decision in this case will have not just national implications, it will likely influence judicial decision-making around the world.
The case is set for oral argument before the United States Supreme Court on April 19, 2010. For a balanced overview of the case by the Public Broadcasting Service (PBS), click here.
Advocates International is an international organization of attorneys in over 150 nations who seek to do justice with compassion, including through its Task Force on Religious Freedom dedicated to protecting the rights to free expression, religious belief and free exercise and association throughout the world for all people.