‘Dangling the carrot of subsidy’

By David Middlebrook and Robert W. Rucker

The United States Supreme Court on June 28, 2010, decided the case of Christian Legal Society, Hastings College of the Law v. Martinez. In that case, the court ruled that the Christian Legal Society at Hastings College of Law could not restrict membership based upon religious beliefs if it wanted to have official recognition on campus.

While this decision was directed at the activities of a university, the erosion of religious freedom that occurred could have a broader impact on religious worship as future courts continue to whittle away at basic constitutional rights. The analysis used to arrive at the decision was based upon the fact that the university was a public property or public forum.

Most churches operate on private property, but they do allow the public at large to come onto church property and it would not take a great deal of effort to extend the reasoning employed in the Hastings case to a church that allows public access and membership. The Hastings decision represents a departure from established court precedent.

The majority opinion in Hastings, written by Justice Ruth Ginsburg, and joined by Justices Stevens, Kennedy, Breyer and Sotomayer, found that the school had the right to require on-campus student organizations to “accept-all-comers” in order to be recognized as a campus organization. In this case, the Christian Legal Society had created a Statement of Faith which it required all members to sign and to agree to live their lives according to the standards described in that statement.

The statement set out traditional Christian tenets of belief regarding such things as the Holy Trinity and the Bible as being the inspired Word of God. It also declared the belief that sexual activity should not occur outside of marriage between a man and a woman. More specifically, CLS took the position that its Statement of Faith meant that homosexuals and non-Christians could not join the group.

When the CLS applied for recognition as a “Registered Student Organization” the application was denied by the school. To be clear, the school was not saying that the CLS could not operate on campus or make use of its facilities for meetings and activities, but that it could not receive all of the same benefits as the other organizations that were registered.

Some of those extra benefits included financial assistance from the school to help pay for group events, the ability to use the school’s newsletter, bulletin board, and email list to make announcements, to participate in a school-sponsored annual Student Organizations Fair to recruit new members and to make use of the school’s name and logo in the group’s communications. The CLS ultimately filed suit alleging that the school’s policy violated the First Amendment right of freedom of speech and freedom of association.

Statement of faith
In deciding for the school, the majority of the court found that the school’s policy was “reasonable and viewpoint neutral” and was therefore not unconstitutional. The court said that CLS was not being required to accept members that did not agree with its Statement of Faith, but that it was only being asked to adopt the school’s “accept-all-comers” policy (and abandon its Statement of Faith) if it wanted to receive the extra benefits associated with official recognition of the group by the school.

The court noted that there has been a long legal history of allowing policies that withhold benefits in these situations as opposed to policies that require undesired action. In this case, the court noted that the school was “dangling the carrot of subsidy, not wielding the stick of prohibition.” The court found that the school’s policy applied to all groups evenly, and was not based upon disfavoring the CLS’s religious point of view.

The court’s dissenting opinion was written by Justice Alito and joined by Chief Justice Roberts, and Justices Scalia and Thomas. The dissent criticized the majority opinion as being based upon “political correctness” and ignoring both factual and constitutional issues that should have been found in favor of the CLS. Judge Alito wrote that the school’s “accept-all-comers” policy was not really the policy of the school at the time the dispute arose, but became the school’s stated policy as the lawsuit progressed.

Justice Alito wrote that the evidence showed that at the time the dispute arose, the school’s policy was to only exclude groups that discriminated on a limited number of specified grounds.

The evidence also showed that other groups were allowed to be officially registered or recognized by the school and yet still have requirements that prospective members agree with or follow the rules or bylaws of those organizations.

The dissenting opinion also criticized the majority for stating that allowing CLS to be recognized and thus be eligible for the same funding as the other recognized groups would amount to a state subsidy.

Ignore prior law
The dissent argued that the funding issue was part of a pretext to ignore prior law. For instance, in a prior Supreme Court case, the Healy case decided in 1972, the court had found that not allowing a student group access to campus facilities and use of school communications such as the school newspaper was a violation of the First Amendment right of freedom of association.

Ultimately, Justice Alito wrote that the only and obvious reason that the Christian Legal Society was not being allowed to register as a campus organization is because of who they were — a religious group. At Hastings, only religious groups were required to admit students who did not share the views of the group.

While the Hastings case involves some legal issues that are unique to that situation, the overall trend of the case is disturbing and threatening to First Amendment rights such as freedom of religion, freedom of speech and freedom of association.

Part of the rationale from the Hastings decision might be used in the future to attempt to force a church to accept “all-comers,” that is persons who do not agree with its Statement of Faith, as members. Churches need to make sure that their basic religious tenets and beliefs are well-documented and that their governing documents including membership requirements are in good order to be prepared for this potential threat.

David Middlebrook is a partner and Robert W. Rucker is an attorney with Anthony and Middlebrook P.C., The Church Law Group, Grapevine, TX.  www.churchlawgroup.com


Leave a Reply

HTML Snippets Powered By : XYZScripts.com