A few years ago, while I was still in law school, there was a case that went before the Supreme Court involving military recruiters. Various law schools, including my alma mater, did not want to allow recruiters on campus because of the schools' objections to "don't ask, don't tell." The Court determined, as my old friend Bookworm wrote at the time, "He who pays the Piper calls the tunes." Essentially, the schools didn't want to allow military recruiters, objecting on 1st Amendment grounds, yet still wanted to receive the federal funds that were tied to allowing the recruiters on campus. I disagreed with the decision at the time, however, I do believe that it is the correct decision.
Yesterday, the Supreme Court held oral arguments on a case involving the Christian Legal Society at the Hastings College of Law in San Francisco. The gist of the case is that the Christian Legal Society (CLS) wants to be recognized as an official student organization, which allows the group to receive "a small subsidy, preferred use of campus facilities, use of all campus bulletin boards and e-mails and use of the school logo." In order to be recognized as an official organization, the school requires that a student organization accept all comers. In other words, the organization cannot discriminate on any grounds. The CLS had been recognized as an official organization until 2004, when it changed its bylaws to bar admission to homosexuals or those who participate in pre-marital sex. The school stripped the CLS of its official recognition at the time, and cut off its stipend.
At this point in time, the CLS had a couple options. They could: a.) change their bylaws and allow all comers to have full benefits of the society, or b.) accept the decision of the school and continue to discriminate as they see fit understanding that they would not receive funding from the school. What the CLS did, of course, was option c.) file a lawsuit and claim injury.
The CLS argued that this requirement violated the organization's rights, and that it didn't make sense for the CLS to be required to allow an atheist to lead a CLS meeting. Justices Scalia, Alito, and Chief Justice Roberts seem to be wanting to participate in what would be called "Judicial Activism" if they were Liberal-appointed Justices with their questions during oral arguments, including Justice Alito opening asking if other organizations were allowed to discriminate on campus despite the CLS's stipulation that others did not, and Chief Justice Roberts trying to parse this case as different than Bob Jones University being denied federal funds for wanting to deny students who believed in interracial dating.
I fail to see a difference between the CLS case and the two Bob Jones University or the Military Recruiters case. I believe that as Bookworm would write, "who pays the piper, calls the tunes," but given the makeup of the Court and the fact that the complainant in this case is a Christian organization and not a Buddhist one, I would not be surprised to see the Court engage in some legal gymnastics to find the holding they want, namely to force the Hastings College of Law to fund an organization that openly wants to discriminate.
It's interesting to think that the organization's argument seems to stem around denying access to atheists as I believe Jesus taught that he wanted Christians to be Fishers of Men, and that would be a pool from which they sought to draw...