The Christian Legal Society has sued Hastings College of Law for its refusal to recognize their group as an official campus club, claiming their freedom to practice their faith is being challenged. An expert on church-state separation law says the case is more about the religious right's "political moxie" to claim religious persecution than about religious liberty.

Last week, the Supreme Court heard oral arguments in Christian Legal Society v. Martinez, a closely-watched case by both the religious right and civil liberties advocates. At issue in the case is whether the Hastings College of Law, part of the University of California system, violated the CLS's First Amendment rights by requiring that the Society comply with the school's non-discrimination policy in order to receive official school recognition as a club.

Hastings, a state-funded institution, requires school clubs, in order to receive the benefits of official recognition, to adhere to the policy which prohibits discrimination on the basis of, among other things, religion and sexual orientation. CLS, which requires members and those wishing to hold leadership positions in the club to be professing Christians and to disavow "unrepentant participation in or advocacy of a sexually immoral lifestyle," requested an exemption from these provisions in 2004, which Hastings refused. Although Hastings never denied CLS access to and use of school facililities, the decision meant CLS could not make use of benefits offered to official school clubs, including limited funding from student activity fees. CLS sued in October 2004, lost both at the trial and appellate court levels, and then appealed to the Supreme Court.

CLS's mission, according to its web site, is "to inspire, encourage, and equip lawyers and law students, both individually and in community, to proclaim, love and serve Jesus Christ through the study and practice of law, the provision of legal assistance to the poor, and the defense of religious freedom and sanctity of human life." Through its Law School Ministries, it "encourages students in faith, connection with Christian mentors, professional development, exposure to other Christian students, and future employment. As many secular law schools have abandoned traditional education concerning the origins of law, increasing emphasis is placed on the foundations and practices which integrate faith and practice.”

The case drew a great deal of attention and an unusual number — 39 — of amicus briefs because of the collision of the nondiscrimination policy and CLS's claim to religious liberty, a collision the religious right has fostered and sued over for two decades. Alan Sears, the president of the Alliance Defense Fund (which is CLS's co-counsel in the case), told the Values Voters Summit in 2007, "the homosexual agenda and religious freedom are on a collision course," and claimed the goals of the "homosexual agenda" included silencing religious speech. Both CLS and ADF have portrayed the Hastings case as a crucial test of whether Christians' religious liberties were being impinged upon by the law school's alleged "viewpoint discrimination." Writing about the case, Brad Tupi, an ADF-affiliated attorney, maintained:

Christian Legal Society v. Martinez is another example of the conflict between secular morality and religious morality. In secular morality, homosexuality is a wholesome lifestyle choice and should not be the subject of criticism or discrimination. In religious morality, homosexuality is sinful conduct. Where institutions include 'sexual orientation' in their diversity and non-discrimination policies, people of faith sometimes find themselves under pressure to surrender their religious beliefs.

On the civil liberties side, the concerns with the case's possible ramifications were summed up by the American Civil Liberties Union's Paul Cates:

If the court were to accept CLS's claim that religious beliefs trump the need to abide by nondiscrimination rules, all nondiscrimination laws — the laws we have put in place to guarantee everyone an equal opportunity to earn a living, find housing and to obtain access to critical services including healthcare — would be in jeopardy.

That's a pretty scary proposition. In this case, it is lesbian and gay students and students with different religious beliefs who are targeted. But we've been down this road many times before. Religious beliefs have been offered as an excuse to justify discrimination based on race, gender, disability and national origin. In fact, just over 20 years ago, a religious school claimed that it was justified in refusing women the health benefits it provided male employees because of its religious view that men are the heads of the household. And just 40 years ago, a restaurant owner in South Carolina argued that his religious beliefs about segregation exempted him from having to serve African-American customers, regardless of what the civil rights laws said. Fortunately, those claims did not prevail.

The political moxie of religious groups: A leading expert on church-state separation law who observed the oral arguments believes, however, that CLS has little chance of succeeding on its claims. Marci Hamilton, Paul R. Verkuil Chair in Public Law at Cardozo School of Law, and author of God v. The Gavel: Religion and the Rule of Law (Cambridge University Press, 2005), told RD that CLS faces two hurdles: although it claims it is the victim of viewpoint discrimination, there is no evidence of such discrimination in the record. Moreover, says Hamilton, Hastings' rule "is just an across-the-board, neutral rule" affecting all clubs equally.

The case, Hamilton, added, "is just further evidence of the political moxie of religious groups right now, and the willingness of religious groups to claim persecution on very, very thin evidence.”

Religious right groups claim persecution in the court of public opinion as well -- from the "War on Christmas" campaigns to the protests that the Pentagon's rescinding of an invitation to the evangelist Franklin Graham to speak at a National Day of Prayer event because of his hostile comments about Islam, the claim that secular society or "political correctness" aims to stifle Christians' freedom is a common rallying cry. Through its Speak Up Movement, ADF has created a special niche for drumming up cases at colleges and universities, and for pitting the values of academia against what it portrays as the constitutional rights of Christians to "live out your faith on campus." Among ADF's allies in this endeavor is Summit Ministries, which trains students in a "biblical worldview" so they can deal "with the world of ideas before they go to college -- especially those that attack the Christian worldview in particular," according to its executive director.

On the legal side, ADF and other Christian legal groups have been attempting to lay the groundwork for changes in the law to support their position. The Hastings case, says Hamilton, "is about the agenda that started with Rosenberger of re-crafting Free Exercise claims that have no chance of winning into free speech claims." In Rosenberger v. University of Virginia, decided in 1995, the Court ruled that a public university engaged in “viewpoint discrimination” when it refused to fund religious clubs on the grounds that such funding might appear to be an endorsement of a particular religious group, in violation of the Establishment Clause. Rosenberger is considered a landmark case in ADF's dossier as it marches on in its stated aim to dismantle the wall separating church and state, and its solidification of "viewpoint discrimination" has been used by CLS and other litigants to promote the Christian persecution theory, even when those claims are not successful in court.

Through the Hastings case, said Hamilton, CLS "is trying to push that decision even farther, and I do think the Court will draw the line. Which is to say, there’s really very little at stake for the religious group here. No matter what they say, based on the facts, they are not being suppressed, they are not being criticized by the law school, they are not being shut out of campus, they are not being forced not to meet with fellow believers. They’re losing very, very little. They can meet on campus, they can put up their signs and try to recruit more members. It’s a little case, in my view.”

Hamilton added that "CLS has permitted itself to be persuaded by its own political rhetoric, but has come up with a very weak set of legal arguments." But only two justices, Chief Justice John Roberts and Justice Samuel Alito, were "really buying into their approach" and "seemed invested in CLS's worldview.”

That worldview, Hamilton noted, is really "an attack on Enlightenment ideals, the goal of a really great higher education institution that forces everyone who walks through their doors to rethink their suppositions and their own views, and challenge them, it is a real attack on that." But despite Roberts' and Alito's sympathies, she doubts CLS will prevail in the end. The case is "part of the larger culture war," Hamilton said, "but I think it will be very hard to get five members of the court to agree that their model is constitutionally required.”