Back in college, when I was the student body treasurer and chairman of the finance board, a Christian group known as Campus Crusade for Christ threatened to sue the university because they wanted to be officially recognized. The problem was they required that their elected leaders leaders sign a personal “Statement of Beliefs” pledge that included a provision affirming that homosexuality was a sin and the leader did not engage in immoral sexual conduct.
At the exact same time, across the country in California, a law school was going through the same thing. We resolved our issue in-house. The folks on the west coast didn’t and they sued. Their case went to the Supreme Court and was decided this morning, which I blogged about earlier. I just finished reading the entire opinion in Christian Legal Society Chapter of University of California Hastings College of Law v. Martinez. Here are my conclusions.
My Own Personal Background with a Similar Case
First, you all know that when I went through this, my official position was that any group should be able to discriminate as long as the opportunity to form an organization was open to everyone. That way, if one group was a “I hate pastries” group, other students could form a, “I love pastries” group and free speech reigned. The free market of ideas would sort out which group was more popular. It was a libertarian-leaning position and I thought about it carefully, even calling home to talk to my parents about it for several hours as I worked out my opinion on the matter.
Thus, my official view on the matter was that Christian group should be allowed to restrict membership and the next morning, a group of students who opposed it should create a counterbalance group for gay religious pride or something along those lines. Everybody wins. That way, just like campaign finance funding, the university political setting resembled the real-world.
Part of the reason our situation was unique was that each organization could only request money for events that were open to everyone. That way, their individual membership may have been discriminatory, but they couldn’t get funding from the student activity fee unless everyone could come and partake. Thus, no one was forced to subsidize discrimination.
Fortunately for all involved, the matter was settled and went away despite the threat of Campus Crusade for Christ sending in lawyers and getting us involved in a very unpleasant legal fight. I got to go about cutting checks to student groups and counting money like Scrooge McDuck. The villagers rejoiced.
I understood, however, both points of view. It was one of the few cases in life where I think each argument was entirely rational.
The Supreme Court Ruled Against the Christian Group
After reading the ruling and dissent in Christian Legal Society Chapter of University of California Hastings College of Law v. Martinez, it looks like it is a double-edge sword. On one hand, organizations and groups with unpopular philosophies or opinions will have a difficult time getting equal access to funding or facilities, whereas on the other, it allows society to determine what it is willing to accept in terms of decency standards.
I do not think it is a “heart in the dagger of religious liberty” as Alito and the dissenting minority inferred. Religious groups can still form outside of the university, they can have Bible studies, throw events, start websites, and recruit new members, even if their beliefs are unpopular. They cannot demand that the school and the state legislature give them benefits that it has made contingent upon compliance with certain community ideals; as Justice Ginsburg put it, Hastings “is dangling the carrot of subsidy, not wielding the stick of prohibition.”
The bottom line is that Justice John Paul Stevens showed tremendous wisdom and in a few sentences, cut to the heart of the matter in his concurring opinion:
In this case, petitioner excludes students who will not sign its Statement of Faith or who engage in “unrepentant homosexual conduct,” App. 226. The expressive association argument it presses, however, is hardly limited to these facts. 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 official imprimatur, or grant them equal access to law school facilities. (emphasis added)
He’s absolutely correct. This is about a university determining whether or not it will lend its name, reputation, and megaphone to a group that is in conflict with basic decency ideals.
The California legislature has decided that state colleges cannot discriminate against gay and lesbian students. The university incorporated the non-discrimination policy into its own rules since it is state-funded. This is consistent with shifts in American public opinion.
According to a new Gallup poll, which has been tracking American’s view on sexual morality for 20+ years, for the first time in the nation’s history, a majority of people in the United States believe that it is morally acceptable to be gay and that it is perfectly equal to being straight. In fact, it currently stands at 52%. Other studies of demographic trends have shown that if only people 29 and younger voted, gay marriage would be legal in 3 out of 4 states.
The reality is that for many of us in the 35-and-younger crowd, discriminating against gays and lesbians is as screwed up as discriminating against blacks, women, or Jews as Stevens stated. These groups should be allowed to exist because it is a free country. That doesn’t mean they have an inherent right to be supported when their beliefs go against the majority.
As a result, I understand the majority ruling and the reasoning.
There Seems to Be Disgust Dripping from the Dissenters’ Words
The most self-evident thing in the dissent is that the four members of the court who ruled against the university believe that gays or lesbians are defined by behavior, or a sexual fetish. They don’t think of gays and lesbians as a group of people who are wired to be attracted to the same gender in an immutable way like race or sex. Alito’s constant harping on “sexual mortality” underscores the belief that he, like a lot in his generation, can’t get passed what these folks do in bed.
In other words, they seem incapable or unwilling to discern between sexual orientation and sexual behavior.
Likewise, if a man who is emotionally and physically attracted to women has sex with another guy, that doesn’t make him gay. His behavior is gay, but his orientation isn’t. A man trapped in prison who has sex with another man after ten years without being with a women is still straight, even though his actions weren’t. He wants nothing more than to hold a beautiful woman, make love to her, and be connected to her emotionally and physically.
Saying that people who are gay must remain celibate or force themselves into a relationship with the opposite sex (would you want your daughter, sister, or mother marrying a man who wasn’t attracted to women?) is cruel and irrational.
Things Are Changing
The Bible fully supports slavery yet we decided, as a nation, that was no longer morally acceptable. The same thing with second marriages … we now allow them, with only the catholic church remaining faithful to scripture.
We are doing the same thing now with sexual orientation. In ten or twenty years, being gay will be about as interesting as having blond hair or green eyes. Those who oppose it will be branded bigots exactly like those who hate people for being black. Facts don’t lie. Even James Dobson was smart enough to realize this a year or so ago in his retirement speech, when he went through upcoming demographic changes.