We have to hope that the Supreme Court, led by Justice Anthony Kennedy, will reject Michael McConnell's oral argument on behalf of his client, the Christian Legal Society. Christian Legal Society believes that it is entitled to be a recognized student group at Hastings Law School even though it refuses to accept Hastings' "all-comers" policy that all official student organizations must be open to all students. Christian Legal Society refuses to admit students who practice a homosexual lifestyle because that lifestyle violates their Christian beliefs.
It is shrewd for McConnell to argue that CLS v. Martinez is a case about belief, because the Supreme Court has held that religious belief enjoys absolute protection. If the case is about belief, then CLS can do absolutely what it wants to. The Supreme Court has always held, however, that religious conduct is not absolutely protected. Therefore a religionist is absolutely free to believe he should sacrifice virgins to an angry god but not actually to sacrifice them. I think the Court should rule that discrimination against gays is not protected free exercise or free speech and rule for Hastings Law School.
In the oral argument at the Court, however, the wording turned on belief and status. McConnell argued that the all-comers policy is wrong because it violates all student groups' beliefs. Thus the Republicans' beliefs are violated if they have to admit Democrats and the Democrats' beliefs are violated if they have to admit Republicans. But what if the Republicans don't want to admit African-American students, and the Democrats don't want to admit women?
McConnell says that such exclusion of African-Americans (and presumably women) is prohibited because that decision to exclude is based on status, not belief. McConnell concludes that a policy that prohibits exclusion on the basis of status is constitutional, but one that excludes on the basis of belief is not. His group, then, is not like the group that excludes African-American students or women, because CLS's action is based on belief.
That argument must be rejected. CLS is no different from the group that excludes African-Americans and women because they believe African-Americans and women are inferior. McConnell's definition of belief would force Hastings to recognize and fund all groups that believe it is right to discriminate. His argument undermines all antidiscrimination laws.
CLS is already free to meet at Hastings. In the lawsuit, it seeks Hastings' official recognition for its beliefs. Justice Anthony Kennedy wisely told McConnell: Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don't we also have a tradition of separation? That's the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs. McConnell responded that CLS was perfectly private and would be perceived as such even as an official Hastings group.
That is a ridiculous argument in this context. Right now, as a perfectly private group, CLS is free to associate at UCHastings. What it seeks is government support for its absolute beliefs to discriminate against homosexuals. A court ruling for Hastings would open the door to government support for unlimited religious discrimination.
I hope that Justice Kennedy holds on to his insights about the tradition of separation and refuses to provide a fifth vote to sanction religious discrimination masquerading as constitutionally protected religious belief. Twice before he has recognized the evils of antigay discrimination and struck down laws based on animus toward homosexuals. This time he will have to vote that religious bias against gays is no more defensible than any other discrimination.