Gay Marriage - Looking for Time Bombs and Tea Leaves

There are always some among the Supreme Court watcher set who look for any and all clues as to secret agendas of the Court or individual justices. They do just about everything short of sacrificing animals and then reading the entrails. As an attorney with a special concern for gay rights issues, I admit that I typically read significant U.S. Supreme Court opinions as well as significant state supreme Court opinions (e.g., the Iowa ruling striking down bans on gay marriage in that state). Now some are reading signs into the recent Hastings Law School opinion that upheld the law school's right to withhold full recognition - and more importantly student activity fund monies - from a Christian legal society that excluded gays. Frankly, I hope that the conjectures are accurate. It is long past time that the Court accept that sexual orientation is not a matter of "conduct" but rather an immutable attribute that cannot be altered. Here are highlights from the New York Times in respect to this effort to "read the tea leaves" based on a one sentence provision:
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The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.
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All it said was this: “Our decisions have declined to distinguish between status and conduct in this context.” But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.
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Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.
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There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia. “The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.
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“The Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class,” Theodore J. Boutrous Jr. wrote the next day to Chief Judge Vaughn R. Walker of the Federal District Court in San Francisco.
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[I]f the plaintiffs’ reading is correct, Justice Ginsburg’s statement is both a time bomb and a tea leaf that will figure in litigations concerning same-sex marriage on two coasts. Judge Joseph L. Tauro of the Federal District Court in Boston issued two rulings on July 8 striking down part of the federal Defense of Marriage Act of 1996, and Judge Walker is expected to rule soon in the California case.
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The decision in which the statement appeared, Christian Legal Society v. Martinez, considered whether a public law school could deny recognition to a student group that excluded gay men and lesbians. The majority decided the case on narrow grounds that barely acknowledged the clash between anti-discrimination principles and religious freedom.
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Barely, but not entirely. In her brisk aside, Justice Ginsburg put the muscle of a majority decision behind a proposition that had attracted only one vote when the court struck down a Texas law making gay sex a crime in 2003 in Lawrence v. Texas.
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“Texas’s sodomy law is targeted at more than conduct,” Justice Sandra Day O’Connor wrote in a concurrence. “It is instead directed toward gay persons as a class.”
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Obviously, it is impossible to know for certain what the Court may do in future cases, but taken piece by piece, Martinez, Lawrence and Romer v. Evans have built a series of stepping stones
that lead to an ultimate ruling supporting gay marriage and striking down ant-gay state constitutional amendments and DOMA as well.

Supreme Court Rules Against Anti-Gay Christian Student Group

As I mentioned in passing, the Supreme Court dealt the anti-gay Christianists a major set back in its ruling yesterday that upheld Hastings Law School's decision to bar the Christian Legal Society as a recognized student organization because of CLS's failure to comply with the school's non-discrimination policy. The case is Christian Legal Society v. Martinez, 08-1371. CLS requires that members sign a "statement of faith" and regards "unrepentant participation in or advocacy of a sexually immoral lifestyle" - read homosexuality - as being inconsistent with that faith.” Happily, Justice Ginsburg who wrote the majority opinion correctly noted it was CLS that wanted special rights compared to other organizations which complied with the non-discrimination policy. But then, hypocrisy is always the norm with Christianists who seek to depict themselves as victims even as they persecute others. ABC News has some highlights on this ruling which correctly defeated CLS's effort to make public funds underwrite its religious based discrimination. Here are some highlights:
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An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won't let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group's "discriminatory practices."
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"In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations," said Justice Ruth Bader Ginsburg , who wrote the 5-4 majority opinion for the court's liberals and moderate Anthony Kennedy. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."
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[T]he decision is a large setback for the Christian Legal Society, which has chapters at universities nationwide and has won similar lawsuits in other [lower] courts.
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[Justice] Kennedy said "the era of loyalty oaths is behind us." "A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view's validity should be tested through free and open discussion," Kennedy said.
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Justice John Paul Stevens was even harsher, saying while the Constitution "may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them."
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Stevens, who plans to retire this summer, added that "other groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities."
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What further defeats may befall Christianists in the wake of yesterday's decision is yet to be seen. An article in The Advocate suggests that some faith based initiatives which have involved religious organizations receiving taxpayer funds yet being allowed to discriminate against other citizens/taxpayers. Here are a few highlights:
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The decision has even more important implications for LGBT rights, however. The court’s analysis strongly supports the position that when the government provides funding to private groups, it can require that the recipient agree not to discriminate against LGBT people. This is significant because for years, faith-based groups providing purely secular social services funded by government contracts or grants have maintained that they have a right to discriminate against LGBT people despite receiving public funds. The court’s decision suggests that faith-based grant recipients have no right to a special exemption from nondiscrimination requirements.
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The court’s decision will provide strong ammunition in challenges to laws that claim to regulate conduct but in fact discriminate against LGBT people, such as the military’s “don’t ask, don’t tell” policy.
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Monday’s decision is a serious defeat for antigay groups that have been working aggressively to establish the radical proposition that antidiscrimination laws—particularly those that include sexual orientation — violate the First Amendment. At the same time, antigay groups have mounted an aggressive propaganda campaign, falsely claiming that basic equality protections pose a threat to freedom of speech and religion. The court’s holding Monday will help put a stop to those efforts to roll back crucial antidiscrimination protections for LGBT people.

Supreme Court to Hear Case of Christian Group That Wants to Exclude Gays

One basic concept that the Christianists refuse to grasp is that when one wants public tax derived funds - or in the case of college organizations, fees derived from all students- the right to discriminate and exclude others based on religious beliefs is waived. If you want to be a bigot and exclude gays, then don't ask for public/university funds. The targets of discrimination should not be forced to indirectly fund their oppressors. Now, the U.S. Supreme Court has agreed to hear an appeal from a Christian student group in San Francisco at Hastings Law School which refused to admit gays and lesbians and decide whether the group's right to religious liberty and freedom of association can trump a university's ban on discrimination based on sexual orientation. Can't you hear the hue and cry of the Christianists if they were excluded and forced to fund a group that condemns and discriminates against them? The double standard truly becomes tiring. While the outcome ought to be unquestioned, given the Christianist appointed to the Supreme Court by the Chimperator, one cannot help but worry. Here are some highlights from the Baltimore Sun:
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The University of California's Hastings College of Law says its officially recognized student groups must be open to all of its students. The law school also has a general non-discrimination policy which applies to student groups and programs. It forbids discrimination based on "race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation."

Five years ago, the Hastings chapter of the Christian Legal Society was told it could not continue as a recognized student group at the law school if its officers refused to pledge to abide by the non-discrimination rule.

For its part, the leaders of the Christian student's group cited its national policy which said, "In view of the clear dictates of Scripture, unrepentant participation in and advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith" demanded by the Christian Legal Society.

Because the Hastings chapter would not abide by the university's policy, it lost its recognition as an official student group. This is turn meant the campus would not pay travel costs for the group's leaders to attend national meetings. The group also lost its right to use reserved rooms for meetings and, it was excluded from some newsletters or mailings that were sent to students at the law school.

A federal judge and the U.S. 9th Circuit of Appeals rejected its claim, saying a university can enforce "an open membership rule" for student organizations without violating the Constitution. . . . After considering the appeal for weeks in their weekly closed-door conference, the justices said today they had voted to hear the appeal and to rule on whether the Constitution protects the Christian student's group right to exclude some students.
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Religion continues to be a source of hate, evil and division and "godly Christians" seem to be the least Christian in their actions towards others of anyone.

Christian Law Group Loses Fight For Law School Funding

Like proverbial pigs at the trough, self-styled "Christian" organizations at colleges and universities often seek funding from the educational institutions where they are based even though the organizations discriminate as to who can join the organization. In my view it is all too typical of the Christianist mindset to think they are special and should not operate by the same rules as other organizations that receive funding from the educational institution - namely that they must accept any student seeking to join. Fortunately, the courts are increasingly giving these "Christian" groups a much needed smack down and upholding the right of educational institutions to refuse funding to discriminatory student organizations. The latest such case involves the University of California Hastings Law School which refused funding to a Christian student group because it excludes gays, lesbians and non-Christians. Leading the charge for the wingnuts was the always litigious Christianist Alliance Defense Fund. Naturally, the disingenuous Christianists claim they are being discriminated against. That line is a lie: they can set whatever criteria they want for members, just do not expect public funds form the educational institution to fund it. Here are some highlights from the San Francisco Chronicle on the court's smack down:

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UC Hastings College of the Law can deny recognition and funding to a Christian student group because it excludes gays, lesbians and non-Christians, a federal appeals court ruled Tuesday. The San Francisco law school is entitled to require official student organizations to "accept all comers as members, even if those individuals disagree with the mission of the group," the Ninth U.S. Circuit Court of Appeals in San Francisco ruled. It said the school's policy is "viewpoint-neutral" and does not violate the rights of theChristian Legal Society.

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The brief ruling cited the court's decision last year allowing a Washington state high school to deny recognition to a student Bible club that required members to endorse its religious creed. Last week, the club asked the U.S. Supreme Court to review that case.

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Ethan Schulman, a lawyer for UC Hastings, said Tuesday's ruling allows the school to apply its nondiscrimination policy to any group seeking recognition and a share of the funding that goes to organizations from mandatory student fees. The Christian Legal Society's arguments "would carve a gaping loophole in those nondiscrimination policies" and "force the law school to subsidize discriminatory groups," Schulman said.

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The Hastings chapter, Hastings Christian Fellowship, was initially open to all students and was eligible for funding, office space and inclusion in official publications. Starting in 2004, however, the chapter - apparently following a new national policy - required members to endorse a "statement of faith" and barred anyone who engaged in "unrepentant homosexual conduct."