Sunday, April 11, 2010

Discrimination Masquerades as Free Speech

          Christian Legal Society bars gay and lesbian students from becoming members or officers because it regards unrepentant participation in or advocacy of a sexually immoral lifestyle as inconsistent with affirmation of the CLS statement of faith. CLS's members at UC Hastings College of the Law are free to discuss their biblically-based opposition to homosexuality and to use the school's facilities for their group meetings. Their discussions and their meetings enjoy protection under the free speech and freedom of association rights of the First Amendment. 
          Unfortunately, CLS now has a free speech case before the Supreme Court that is not about free speech. CLS applied to become a recognized student organization [RSO] at Hastings law school in San Francisco. RSOs are allowed to use the Hastings name and logo, can send mass e-mails through the school's e-mail system, receive a listing on the Office of Student Services' website, and use the Student Information center to distribute their information.  
          Hastings has a nondiscrimination policy for all RSOs that prohibits discrimination on the basis of sexual orientation. When CLS refused to comply with that policy, Hastings denied the organization RSO status. As noted above, unrecognized organizations can use school facilities and generally available bulletin boards. In other words, CLS still enjoys the right to speak about its discriminatory beliefs and practices.
          Hastings' policy is appropriate under both California and federal law. The U.S. Constitution protects a right to sexual privacy for gays and lesbians. Racially discriminatory schools can lose their tax-exempt status, even if religion is the basis for their discrimination, without violating the First Amendment. Discriminating in membership on the basis of race or sexual orientation, moreover, is conduct, not speech. The government should not be required to give benefits to groups that refuse to comply with antidiscrimination laws.  
          Nonetheless, CLS is arguing that its free speech rights were violated when it was denied access to the public forum created by the university. The Christian Right has won numerous religion cases in the Supreme Court by recharacterizing them as free speech cases. There is a good possibility that the Court will back CLS and find its free speech rights were violated. In other words, we have to worry that the Court will favor one religion's view of homosexuality over the neutral antidiscrimination laws. 
          Most of the briefs filed in the case engage in a free speech analysis. This is a mistake. As the district court ruled, this is not a case about speech. It is a case about the antidiscrimination laws. The government's responsibility is to enforce the antidiscrimination laws in every context. CLS is free to complain about those laws all it wants. But it is not entitled to government approval of its discrimination. The Free Speech Clause should not be interpreted to permit discrimination by student organizations. Discrimination is conduct, not speech.

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