On Monday, the justices considered the rights of a Christian student group to bar gay members from leadership positions.
The student group, the Christian Legal Society, bars “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it says includes “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct.”
A public law school, Hastings College of the Law in San Francisco, part of the University of California, withdrew official recognition from the group after it refused to comply with a school policy that forbids discrimination on various grounds, including religion and sexual orientation.
At Monday’s argument, Justice Stephen G. Breyer wondered what the group would have to say about a prospective member who said, “I don’t believe in sexual relationships before marriage, and that’s why I want to work for homosexual marriage.”
Michael W. McConnell, the group’s lawyer and a former federal judge, said taking
that position would be enough to disqualify the student.
For any new readers (Hi! Welcome!) unfamiliar with my worldview, I'll state the otherwise obvious point that the Christian Legal Society is precisely the kind of organization I wouldn't want to join, anyway. I try to make a point of not attending parties where I know I'm not invited.
On its face, I would say that the Christian Legal Society should either comply with University policy or lose its recognition. While I don't know what the loss of official recognition would entail, it seems to be rather straightforward that compliance with policies would be a requirement. So far, so good.
But a quick glance at the list of student organizations at Hastings reveals that there are several organizations there seemingly reserved for certain groups. Presumably non-Asian students aren't encouraged to join the Asian Pacific American Law Student Association, and men aren't welcome to join the Hastings Women's Law Journal. (To clarify, I have no objection to any of these organizations.) It's not clear that non-Jewish students are explicitly barred from the Hastings Jewish Law Students Association, but it's pretty strongly implied.
So why would women, racial minorities and other religious groups get to exclude members who don't fit the profile, but not conservative Christians? It seems that the former exclusions do, in fact, comport with the "reigning zeitgeist" (as the brief for the Christian group puts it), while the latter does not. I don't understand how one manner of exclusion is okey-dokey, but not the other. I am (and do) find the policies of the group odious, but suspect they may have a legitimate case.
Next week, the court will hear arguments about whether the names of people who signed a petition to place an anti-gay-rights measure on the ballot in Washington State should be kept secret.
[T] case to be argued next week[is] Doe v. Reed, No. 09-559. The question there is whether Washington State’s open records law violates the free speech rights of people who signed ballot petitions by requiring their names to be made public. Some of those people say they fear retaliation and harassment from advocates of same-sex marriage.
I feel a little bit better about this one.
First of all, one doesn't particularly admire the signatories' courage of their convictions. Perhaps we have reached a point in our society where opposition to marriage equality is an unpopular stance (mirabile dictu), but if people feel strongly enough about the issue to want the issue brought to referendum, they should feel strongly enough to attach their names to it. Some of us feel strongly enough about the issue to stick our necks out rather far, and so I don't have a lot of sympathy for this argument.
However, that's more of an ethical argument than a legal one. I'm on shakier ground trying to discuss the law itself, but from what I understand the anti-equality side is on relatively weak ground. The Washington law was not created de novo for the marriage equality issue, and presumably all other petitions of this kind are part of the public record. Just as the Christian Legal Society should not be uniquely subject to regulations otherwise inconsistently applied, I don't see why the signatories to this particular petition should be uniquely shielded. I understand that it's a hot-button issue, but nobody forced them to sign the petitions. Them's the brakes.
Anyhow, there's your armchair legal analysis from Dan. Anyone with more expertise is welcome to weigh in.