Below is my column this morning on conflicts forming around non-discrimination laws and free exercise. Much of the attention this term in the Supreme Court has focused on the campaign finance ruling striking down limits on corporate spending. However, an equally (if not more) important case has been given little attention before its oral argument on April 19, 2010. Christian Legal Society v. Martinez is the classic “sleeper case”: a case that has a low profile but could have a sweeping impact on our society. While the immediate issue is the refusal of the Hastings College of Law in California to recognize the Christian Legal Society (CLS) as an official student organization, it is a case that could address a growing conflict between anti-discrimination laws and the free exercise of religion. The question is whether anti-discrimination laws are themselves discriminatory against some faith-based organizations. Notably (while it was cut for space), we have followed other cases around the country and the world. This includes Philadelphia evicting the Boy Scouts from a historic building after over 70 years (here).

This is not a unique problem for the United States. For example, in England, the famous Jewish Free School (founded in 1732) denied entry to a student because he was not viewed as Jewish under orthodox rules since his mother was not Jewish as opposed to his father. (His mother converted to Judaism). An appellate court ruled that the use of such religious principles violated anti-discrimination laws and that the school had to admit students that it does not consider Jewish (here).

Universities have also struggled with the line between non-discrimination and religious values. Harvard recently was criticized for setting aside time in a student gym for only women to accommodate the customs of Muslim women who could not exercise in the presence of males (here).

Here is the column:

Can a nondiscrimination policy be discriminatory?

That question, bordering on legal Zen, will be before the Supreme Court on Monday when the justices hear oral arguments in a case brought by Christian law students at a public university in California. The students found themselves on the wrong side of a nondiscrimination policy when they tried to restrict their organization’s leadership to students who adhere to their values. What the Christian Legal Society (CLS) viewed as central to its beliefs the Hastings College of the Law saw as discrimination against non-Christians, homosexuals and others.

The case, Christian Legal Society v. Martinez, has the potential to resolve a long-standing conflict between two of the most cherished American traditions: equality and nondiscrimination on one hand and the free exercise of religion on the other. The United States has taken great strides in recent years to protect people from discrimination — including hate speech, unfair hiring practices and unequal treatment under the law. But to some, such gains in equality have come at a price. Religious groups that discriminate — confining their membership to the faithful and those who share their views — say they are being penalized.

This specific controversy began at Hastings, part of the University of California, when CLS members asked to become a registered student organization. With that designation, the group could apply for certain funding, send mass e-mails to the student body and participate in an activities fair, among other perks. Hastings said no. The school concluded that because the CLS bylaws barred non-Christians, gays and non-celibate students from serving as officers or voting members, the group violated the school’s ban on discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” The CLS could still meet on campus but could not be a registered club unless it opened its membership to all, even those who didn’t subscribe to its beliefs. The group challenged the school, and lower courts supported the Hastings policy as a neutral rule applying equally to all groups.

The seeds of this conflict were planted decades ago, when courts began to rule that organizations could be denied benefits because of their discriminatory religious beliefs or practices. In 1983, the court handed down a sweeping decision in Bob Jones University v. United States that upheld the denial of the Christian school’s tax-exempt status due to its racist policies. Based on its interpretation of Biblical scriptures, Bob Jones would not admit any student in an interracial relationship. While the policy was faith-based, the court held that the IRS could deny the school tax-exempt status because the practice was against the “public interest.”

In such cases, the court set two lines of jurisprudence on a collision course. And that’s the point we’ve reached in CLS v. Martinez. One line protects the free exercise and free association rights of religious organizations against government actions. The other line supports the right of the government to enforce anti-discrimination laws — and to define which groups are protected from discrimination. The result for religious groups can be devastating: denial of benefits such as tax exemption and the use of public facilities unless they adhere to nondiscrimination policies.

The Hastings dispute is being replicated across the country as cities and states enforce nondiscrimination policies against religious organizations. In Washington, after the District’s legalization of same-sex marriage, Catholic Charities decided not to provide spousal health benefits for any new employees in order to avoid penalties for not offering coverage to the same-sex partners of its workers. In Los Angeles, the police department cut ties with a youth group connected to the Boy Scouts because of the latter organization’s position against homosexual Scout leaders. In Boston, Catholic Charities stopped its adoption work because of the demand that it not discriminate against same-sex couples. And in Connecticut, the government has barred organizations with anti-homosexual policies from a list of groups to which state employees can give automatic charitable contributions.

These conflicts are forcing courts to confront the reality that most religions are based on exclusivity principles and, to some extent, discrimination. Whether it is the chosen and the unchosen or the faithful and the infidel, religions define their members in part by the adherence to a set of moral strictures. In Matthew 4:4, Jesus says, in reference to the Old Testament, that “every word . . . comes from the mouth of God.” That does not allow much wiggle room for many in tailoring their views to meet societal demands.

Of course, the Constitution protects religious groups from the demands of the majority in the free exercise of their faith. But increasingly those organizations are being told that, unless they change their practices, they will be penalized. Since their practices are based on their principles, the nondiscrimination policies may be achieving indirectly what the government is barred from doing directly.

CLS v. Martinez is a close and difficult case. The court has to weigh fostering diversity of views vs. combating discrimination. The nation benefits when citizens form groups and advance their ideas. Tax-exempt status is even given to groups to encourage association and free speech — important pillars of our society. We cannot pick and choose between groups if we are to allow for pluralism.

The same is true with college groups. A campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values. Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations. And as the court stated in Roberts v. United States Jaycees in 1984, “Freedom of association . . . plainly presupposes a freedom not to associate.”

While there are strong arguments for upholding the Hastings policy, the CLS was effectively denied recognition because of its religious views — a troubling practice that could easily extend to other groups. For example, some Muslims following Wahabi principles insist that women must be covered and sit separately from men. Likewise, some Orthodox groups such as Hasidic Jews mandate areas divided by gender and require strict dress codes. To insist that Wahabi or Hasidic groups allow anyone to join, including gay and non-conforming members, would create an obvious problem.

Schools can still adopt a nondiscriminatory policy by funding either all or no student groups. That was the choice the Supreme Court gave the University of Virginia in its Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.

The question in the current case is where to draw the line. Schools such as Hastings are legitimately barred from discrimination in hiring and promotions. However, barring student organizations based on their religious views puts the state in the position of bestowing favored and unfavored status on groups.

We need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group. For example, tax exemption should aim to encourage citizens to participate in our society through groups that deepen public debate. These associations not only help individuals define their own values, they also protect the pluralism that defines our nation.

Such neutrality does not mean discrimination is a protected religious right, allowing the faith-based Ku Klux Klan, for example, to engage in public acts of racial hatred. Groups can still be punished for criminal threats, and laws still prohibit discrimination based on race, gender and national origin.

Moreover, no discrimination should be allowed in government-funded social programs. As president, George W. Bush instituted broad funding of faith-based programs, and President Obama has continued that support. That initiative is directed not at supporting specific religious viewpoints but at advancing public goals such as education, health and combating drug addiction.

The Supreme Court has an opportunity in CLS v. Martinez to recognize — and possibly reconcile — the conflict between nondiscrimination and the right of association. Religious groups are feeling a wall closing in on them as they face penalties for the expression and exercise of their views in public settings. For them, the wall between church and state is becoming a cell. We cannot cage faith and claim that we are a pluralistic society.

Ironically, penalizing groups for religious discrimination, in the name of fostering equality, could hamper greater recognition of gay rights. Same-sex marriage, for instance, is unlikely to gain majority support if a vote for gay rights is seen as a vote against the rights of faith-based groups. As we move toward greater recognition of gay rights — as we should — we need to assure religious groups that it doesn’t mean they will be punished for their views.

In the end, no one will win if equality is seen as a zero-sum game.

Jonathan Turley is a law professor at George Washington University.

Washington Post Sunday: April 16, 2010