Jewish Journal


June 28, 2010

Guns, God and a big day for the Supreme Court


I don’t have time to go into much depth right now, but there is a lot of big Supreme Court news happening today. Part of it has to do with the fact that the most-anticipated decisions are typically published at the end of the court’s term, which is now. But there is also the changing of the guard with Justice John Paul Stevens retiring.

The latter brings us to the start to Elena Kagan’s confirmation hearings. She’s promised to be an impartial judge.

As for the big rulings issued today: one involved guns; the other involved God. (In a third, the court declined to hear a Vatican appeal over a clergy sex lawsuit.) In the God case:

An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won’t let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group’s “discriminatory practices.”

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California’s Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.

But Hastings, which is in San Francisco, said no recognized campus groups may exclude people due to religious belief or sexual orientation.

The court on a 5-4 judgment upheld the lower court rulings saying the Christian group’s First Amendment rights of association, free speech and free exercise were not violated by the college’s nondiscrimination policy.

I’ve previously mentioned Martinez here: I’d be surprised if the high court, with its current make up, upheld Hastings’ anti-discrimination policy. Looks like I airballed that.

Adam Goldstein, of the Student Press Law Center, offers an interesting take on what’s wrong with the Court’s decision today:

While I am deeply sympathetic to the sensibilities of the parties involved in the case, and realize that any outcome would be hurtful to one group or another, I’m not sympathetic to the Supreme Court’s majority opinion in the case. In fact, the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.

The reason is that the case hinges on the interpretation of forum status. In short, a forum is created when the government sets aside some property for some people (either the public at large or a subset thereof) to speak. For better or for worse, this is the standard that has been applied to funding for student groups on public campuses, even where the funding originates in student fees.


The Court, upholding the Ninth Circuit’s ruling, found that yes, a college can require groups to admit members despite the groups’ rights to free speech and free association. In the course of doing so, it made some peculiar statements along the way—statements that could well come back to haunt those who would assert a constitutional right to access campus resources held open for students in general.

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