I hate siding with these people

There was an interesting "Sidebar" column in the Times the other day about a couple of free-speech cases that will be coming before the Supreme Court. What caught my eye is that both of them have to do with gay rights.

Case #1:

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.

Case #2:
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.


  1. Certainly not more expertise, but I want to inject an observation on Case #1. The Asian Pacific American Law Student Association and the Jewish Law Students Association and the Women's Law Journal do not exclude, respectively, non-Asian Pacific Americans, non-Jewish students, or men. The groups focus on issues important to those groups, as defined by the membership at any time, but do not exclude based on race, gender, or sexual orientation. Believe me, especially at a California law school, there are predictably frequent attempts by someone outside the typical participant demographic joining these groups, just as their are men in women's studies classes and whites in African-American studies classes. And, though I can't speak for the welcome diverse participants receive in the aforementioned Hastings groups, they *are* admitted in accordance with school policy.
    The issue here is the act of barring someone by calling homosexuality an activity rather than an immutable characteristic; the legal issue is not simply having a group comprised primarily of a race, religion, gender, or sexual orientation.

  2. My nephew joined the club devoted to Turkey even though he is not Turkish and was the only non Turk there, they were happy to have him and he went with them on a trip to Turkey. (as to why he chose to do so I have no idea he just told me he was interested in it)

    If you join a club you should adhere to the basic idea of what the club is about. If I join a Kung Fu Club I should partake in the exercises and support the practice and not work against it, but I can still be a pacifist and non-Chinese.

    The purposes of the clubs should be to promote knowledge and understanding and offer a home to the people who share those beliefs. It should only exclude people who wish to work against the purpose of the club.

    The simple fact is, for the most part, the reason why my nephew was the only non Turkish member of the club is that most people who are not Turkish don't have any real and abiding interest, yet the Turkish club had the patience and the givingness (if that is a word) to accept my nephew into their club (in fact, by my understanding, they were happy he was part of it because they enjoyed sharing their culture)

    From then the school has the right to judge the worthiness of the purpose of the club and whether they should then recognize it. A club dedicated to white supremacy has no justification.

    So that leads us to the Christian Legal Society.
    What is the purpose of the club. Is it meant to be a home to Christians, espousing Christian ideals? Is, in fact, the Christian Legal Society using false advertising, that they are not Christian at all, but nothing but bigots who are against Christianity.

    Frankly, it is an abomination for the Christian Legal Society, above all others, to exclude anyone. It is their duty to love and accept all, there certainly can be spirited debates about the sinfulness of the homosexual act but it must be done in the spirit of love and reconciliation.

    Since the Christian Legal Society is not what it claims to be it should not be recognized.


  3. By the way, here is the statement from the Turkish Student Association that my nephew had joined (he has since graduated)

    Welcome to the official web site of the Turkish Student Association at North Carolina State University (NCSU-TSA).


    • To advance social and cultural interaction among Turkish students as well as American and all international students

    • To introduce Turkish culture, art, cuisine, folklore and music within the best possible way

    • To organize events such as picnics, cultural shows, concerts, trips and celebrations for its members and fellow students

    • To help new coming Turkish students to familiarize themselves with the NCSU community


    • To increase team spirit among Turkish students at NCSU and represent Turkish culture in an outstanding manner.


    • To establish a fine bridge between Turkish and other cultures
    • To introduce Turkish culture to the NCSU community
    • To increase communication and harmony between Turkish students
    • To build strong community ties
    • To work closely with other associations at NCSU to raise TSA's voice and represent Turkey


    • To increase number of active members and build strong communication and solidarity among members and nonmembers.


    • To organize regular meetings among the board members biweekly
    • To provide information to help newcomers in their transition to NCSU as well as to the United States lifestyle
    • To organize a yearly Turkish Night with an attendance target of at least 400
    • To celebrate at least one "Bayram"
    • To form a Turkish music committee and present concerts
    • To support members in academics
    • To support sport activities by creating a strong soccer team (“Anatolia”) and by promoting the Wolfpack teams
    • To plan social activities such as Turkish tea/coffee chats, picnics, trips, dinners, and movie nights once every two weeks
    • To create personalized TSA apparel as souvenirs once graduation


    President: Sercan Teleke
    First Vice President: Ali Kilic
    Secretary: Meryem Uluskan
    Treasurer: Fatih Canpolat
    Webmaster: Berk Zafer

    This is exactly what school clubs should be about.

    If the Anti-Christian Legal Society wants to get together let them do it on their own, they can certainly find some bigoted church to provide them space to preach their hatred and exclusion.


  4. I could find no bylaws for any of the groups, so I could not really judge how open they were to membership by demographically different students. If, indeed, white students are welcome to join the black student groups (and seek leadership positions), men to join women's groups, non-Jews to join Jewish groups, etc etc etc, then clearly the case for the Christian Law Society is substantially demolished.

  5. A truly private group can exclude anyone it wants, for any arbitrary reason. A student group at a public university, however, is not a truly private group, and Hastings is part of the University of California system. HLS can and indeed must ensure compliance with non-discrimination laws, which means the rule of the Christian Law Students is illegal. If the Christian Law Students want to have a club in which they can legally exclude homosexuals, they are free to form the Church of Heterosexual Law Students Who Purport To Be Good Christians, Inc., an entity entirely separate and apart from the auspices of a public institution. And good luck with explaining that on your moral character applications to the California State Bar.

    A truly private group can also refuse to divulge its membership. A contributor to a political campaign, however, is making a political statement by giving money to support a cause. A public political statement. When you say something in public, people can hear you and as far as I'm concerned, by making a public statement you've waived your privacy rights to it. There is no privacy right to anonymously donate to a political cause, and if you find the fact of your having donated to a political cause embarassing, then perhaps you ought not to have donated to it in the first place.

    As for the Christian Legal Society on a moral level, perhaps a Bible quote says it best: "By their fruits shall ye know them." My impression of Christianity at its best is that it is fundamentally about forgiveness; these folks are obsessed with rendering judgment -- and I think if they read their holy book closely, they will find that the privilege of rendering judgment is reserved to someone other than the Christian Law Society.

  6. Thanks for the comment, TL. My only basis for defending the CLS was that other groups seemed to be able to exclude demographically (or religiously) incompatible members. If all other campus groups are required to accept all potential members, then there's really no question that the CLS has no case.

  7. TL, do you remember Brown vs. Socialist Workers' Party? The SCOTUS ruled that:

    The First Amendment prohibits a State from compelling disclosures by a minor political party that will subject those persons identified to the reasonable probability of threats, harassment, or reprisals. Buckley v. Valeo, 424 U.S. 1, 74 . Moreover, minor parties must be allowed sufficient flexibility in the proof of injury. Ibid. These principles for safeguarding the First Amendment interests of minor parties and their members and supporters apply not only to the compelled disclosure of campaign contributors but also to the compelled disclosure of recipients of campaign disbursements.

    So unless this has been overturned, it appears the Supremes disagree with you about privacy rights of campaign donations.