Yesterday I had the privilege of speaking at Columbia Law School in New York City regarding Christian Legal Society v. Martinez, the case in which the U.S. Supreme Court held that Hastings College of the Law did not violate the First Amendment by refusing to recognize its CLS law student chapter because the chapter draws its leaders and voting members from among those who share its religious commitments. Many thanks to the Federalist Society for sponsoring the discussion.
In the “observations” portion of my presentation, I first noted that the decision’s impact on schools with “traditional” non-discrimination policies (i.e., not the unusual “all comers” policy that the Supreme Court addressed) is not entirely clear. When the Court first accepted the case for review, many expected it to move towards resolution of the broader conflict between religious associational freedom and government rules banning discrimination on the basis of religion and “sexual orientation.” Given that the Court majority chose to address only the “all comers” policy, it did not fulfill that expectation.
I next observed that public universities have not in great numbers adopted “all comers” policies like the one Hastings said it had. I don’t know exactly why this is so, but a number of potential reasons come to mind. First, schools may recognize the absurdity and the virtual impossibility of consistently enforcing an all comers policy. Second, other schools may not possess the same intense desire to de-recognize a Christian student group that Hastings manifested from the beginning of the controversy onward. Third, it may be a matter of simple inertia. Of course, other universities may eventually consider adopting all comers policies. If you become aware of any such efforts, please let us know!
The question and answer period and my one-on-one discussions with students afterwards had a common theme: why couldn’t CLS just promise to comply with the all comers policy? The premise behind this question is that there isn’t a real threat that numerous people rejecting CLS’s religious commitments will seek leadership positions. There are two basic responses to this.
First, the primary concern is not so much that militant atheists and unrepentant practitioners of extramarital sexual behavior will “storm the gates” and take over, but that CLS, like so many other Christian organizations throughout the centuries, will slowly drift away from orthodoxy. A written statement of faith, written conduct standards, and a requirement that leaders and voting members declare their agreement with those statements are among the most important ways of protecting against theological drift.
The second rationale is less “utilitarian” and more principle-centered. CLS (and many Christian organizations) quite literally define themselves through their statements of faith. Creeds and confessions are intentional acts of self-definition. And creeds and confessions, although admittedly capable of error, are drawn from authoritative Scripture. In that sense, they are not a matter of unfettered choice. So when a CLS chapter says “this is our statement of faith” and a public university says, “no, you may not define yourself that way,” it’s a big deal. CLS cannot depart from its statement of faith without committing what amounts to intellectual and theological treason. When a public university makes such a demand upon a CLS chapter, its only legitimate options (assuming efforts at negotiation are unsuccessful) are (a) relinquishing recognition; or (b) litigation.
Once again, many thanks to the Federalist Society for sponsoring the event and to the Columbia University Fed Soc leaders for their hospitality.
This post originally appeared here.