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Does Scripture trump anti-bias law?

WASHINGTON (UPI) -- The U.S. Supreme Court justices are rolling back the sleeves of their robes to wrestle with yet another church and state case this term. The justices should be prepared for some heavy lifting.

The court already has heard argument in a case involving a cross set up on federal land in the Mojave Desert, and should rule on it later this term. Last week, the justices agreed to hear and decide a separate dispute between a San Francisco law school and the Christian Legal Society.

The case pits the law-driven obligation of a school, a public entity, to ban discrimination against gays and lesbians and the right of a religious student group to follow biblical condemnation of homosexual activity.

The high court has a history of jurisprudence requiring schools to treat religious organizations like secular groups. But those previous cases were largely decided 5-4, the new case accepted by the Supreme Court has its own particular characteristics and Justices Samuel Alito and Sonia Sotomayor, the court's most junior members who did not participate in those earlier cases, are still question marks.

Alito "is inclined to the view of the First Amendment that the government is not intended to be hostile to religion," Douglas W. Kmiec, a law professor at Pepperdine University in California and a leading supporter of allowing more religious activity in public life, told The New York Times in 2005 when Alito was tapped for the high court. "It is intended to be accommodating when it can." Kmiec served with Alito in the U.S. Justice Department.

But as a judge before joining the Supreme Court, Alito did not have the opportunity to rule in a case where the use of public money by religious groups is at issue, the Times said

Other analysts point out Alito has cited the three-pronged "Lemon test" when deciding at least one case as a judge: A government action must have a secular purpose; it must neither advance nor inhibit religion and it must avoid "excessive entanglement" between government and religion.

The test, from the Supreme Court's ruling in 1971's Lemon vs. Kurtzman, is loathed by fellow conservative Justice Antonin Scalia, who once wrote it was like "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after repeatedly being killed and buried." The test "stalks our establishment clause jurisprudence … frightening little children and school attorneys."

The Christian Legal Society, founded in 1961, described itself to the Supreme Court as "a nationwide association of lawyers, law students, law professors and judges who profess faith in Jesus Christ."

Any student who wishes to become a "voting member of CLS must affirm a commitment to the group's foundational principles by signing the national CLS Statement of Faith. … A shared devotion to Jesus Christ is reflected in the Statement of Faith, the affirmation of which indicates a member's commitment to beliefs commonly regarded as orthodox in the protestant evangelical and Catholic traditions."

The society told the high court its national organization "reaffirmed in March 2004 its understanding of 8 biblical principles of sexual morality" and its Statement of Faith declared, "In 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."

The local CLS chapter at the University of California's Hastings College of Law put the reaffirmation into effect in the 2004-05 school year while applying to the college for standing as a registered student organization, or RSO.

After first appearing to accept CLS's application, the school ultimately decided the society's restrictions on membership violated the institution's non-discrimination policy.

In an exchange of letters, the CLS chapter told Hastings anyone could attend its meetings, but only students who adhered to its Statement of Faith could become voting members, the only type of membership available. The chapter said its exclusion applied only to practicing homosexuals, not to those who remain chaste.

The school responded by saying that as an institution that accepted public funds, it was bound by state and federal laws against discrimination, including discrimination based on sexual orientation. The removal from the list of RSOs had practical effects. Officially, the school would no longer pay travel costs for CLS chapter officers to attend national meetings, the group could not reserve rooms for meetings (though the school continued to allow this) and the society was excluded from some mailings sent to law students.

The chapter took the dispute to federal court, but lost at the trial court and the appeals court levels. The appeals court panel said since both sides agreed "that Hastings imposes an open membership rule on all student groups -- all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition (as an RSO) are therefore viewpoint neutral and reasonable."

In successfully asking the Supreme Court to hear the case, CLS said in its brief the appellate ruling against it conflicted with those in other U.S. circuits.

The brief cited a number of high court precedents, but relied heavily on 2000's Dale vs. Boy Scouts of America. In that case, the justices ruled 5-4 that the Boy Scouts' right to free association -- the right to deny membership to gays -- trumped New Jersey's public accommodations law, which barred discrimination based on sexual orientation.

The CLS brief said the issue in its case is "whether a religious student group ... may draw its officers and voting members from among those who share its core religious commitments. ... This (Supreme) Court has consistently protected (viewpoint group's) First Amendment right to deny leadership and membership to persons who could adversely affect the association's ability to express its message," citing Dale vs. BSA, and "has consistently required public universities to recognize disfavored student organizations, including religious groups, under the First Amendment's protection of both the rights of expressive association and free speech," citing 1995's Rosenberger vs. Rector of the University of Virginia.

"Simply by requiring religious groups to open their leadership and voting membership to persons of different or anti-religious beliefs," the CLS brief said, "public education officials could easily circumvent this (Supreme) Court's critical protection of religious groups' access to public educational facilities from which they have too often been discriminatorily excluded."

In addition, "the impact of the decision is substantial," CLS said. "It affects approximately 3 million students at hundreds of higher educational institutions in the 9th Circuit (mostly the West Coast and Alaska). Many colleges and universities undermine the freedom of student religious groups to choose their leaders and members, often resulting in litigation. Because of the 9th Circuit's (appeals court) decision, national organizations like CLS cannot maintain uniform national membership criteria for all their chapters."

In its own brief, Hastings said even if Dale vs. BSA "applied here, CLS failed to meet its factual burden ... that complying with the (school non-discrimination) policy would significantly affect its ability to advocate public or private viewpoints."

The school's brief said the trial judge ruled that even after CLS chose not to comply with the non-discrimination policy and was denied official status, the society "was able to meet during the academic year without any significant impediment to its activities or its ability to communicate as a group; indeed, its membership actually increased after the law school declined to officially recognize it."

CLS was permitted to participate in a student fair, reserve school rooms for meetings and events and post announcements about the group's activities, Hastings said.

While the decision in Dale ordered the lower courts to show deference to the "expressive" views of groups, it did not allow those groups to escape showing a critical element of a government violation -- that a government entity's action "affects in a significant way the group's ability to advocate public or private viewpoints," Hastings said.

To the contrary, the Supreme Court in Dale specifically cautioned its ruling did not mean a group "'can erect a shield against anti-discrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.' ... This case falls squarely within that warning."

The justices should hand down a decision in the Hastings case before recessing for the summer.

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