On June 28th, the U.S. Supreme Court—in a bitterly divided 54 vote—upheld a public university's right to enforce an "all-comers" antidiscrimination policy against a student group affiliated with the Christian Legal Society (CLS).
As president of InterVarsity Christian Fellowship USA—and as a former professor of law—I have concerns about how this decision may impact our 860 chapters and other campus ministries.
1. Legal Impact
Narrowly construed, the court upheld Hastings Law School's right to require all recognized student organizations to abide by its "all-comers" antidiscrimination policy. This unusual policy mandates that all school-approved groups "allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs."
To date, I am aware of only one other public university—a regional school in Maine—that has a similar policy. On its face, the policy seems logically inconsistent and impossible to enforce. Will Democratic student clubs really accept Republicans as leaders? Will Hillel, a national Jewish campus group, embrace Muslim students as voting members? Will Sierra Club chapters follow student leaders who deny global warming?
It is difficult to imagine a large university like Ohio State adopting an "all-comers" policy. Student groups representing affinity groups such as sororities, Latinos, atheists, or the LGBT community would be required to admit anyone and everyone into their inner circles. Sororities, for example, would have to admit male students. The result would be chaotic.
Two factors make this decision particularly disconcerting. First, despite the technical narrowness of the holding, the majority opinion contains sweeping language in support of antidiscrimination policies—particularly as related to religious beliefs and sexual orientation—and in affording broad latitude to university administrators.
The second major disappointment rests in Justice Kennedy's concurrence. Considered the swing vote on the court, he compares CLS's requirement that all members sign its statement of faith with a political loyalty oath. His conclusion—"the era of loyalty oaths is behind us"—is both a disturbing misunderstanding of faith statements and an odd blurring of spiritual and political spheres.
2. Cultural Significance
CLS v. Martinez raises many questions. If religious student groups hold fast to their beliefs and adhere to sexual holiness standards, will they be relegated to second class status? Does this case represent yet another step in the secularization of American society? Will questions of faith be further marginalized vis-à-vis the public square?
The ruling runs counter to four decades of Supreme Court decisions. Over that period, the court has been a protector of students' First Amendment rights to believe, associate, and speak. It has ordered public universities to recognize radical political groups (1972), to open public university buildings to religious student clubs (1981), and even to fund a student-run Christian student newspaper via student fees (1995).
In Martinez, the majority opinion turns the student fees argument on its head, making it a wedge issue against CLS. Let me be perfectly clear on this matter: the vast majority of campus ministries regard such fees to be an irrelevant side show. What really counts is having access to students, facilities, and communications on par with secular student groups.