Supreme Court Throws Christian Students to the Lions

While the media focused a good deal of attention on Elena Kagan’s vapid and hollow charade confirmation hearing, the nine current Supreme Court Justices finished another term. The Court’s decision in McDonald v. Chicago was a victory for all those who can read the Second Amendment, however, its decision in Christian Legal Society v. Martinez struck a major blow to First Amendment advocates everywhere.

A small group of Hastings College of Law students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. Under a CLS resolution, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership. Hastings’ refused to give CLS student group official recognition, claiming CLS violated a non-discrimination policy.

The issue before the Court, according to the Hastings’s CLS group was,

“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”



Hastings’ administrators saw a chance to boot the Christians from their ranks and they took it.



In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.

The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.

The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” According to the resolution, a “sexually immoral lifestyle” specifically includes engaging in acts of sexual conduct outside of a traditional, man-woman marriage. It was shortly after the resolution was passed that the Hastings chapter of CLS applied for student-group recognition.

Progressive school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”

It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.

The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.

The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.


According to the majority, the Constitution forbids a right to association; that is, a right for Christians to associate with other Christians.

Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.

In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,

“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).

How dare the Christian Legal Society seek to be comprised of Christians!

In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”

Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”

Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.

The possibilities are endless.

The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”

In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.

Law schools should be a forum for healthy, open, and honest debate. The forum becomes muddled when administrators, liberal or conservative, attempt to limit freedom of speech.