by Mike Andrew - SGN Staff Writer

In a 5-4 ruling, the U.S. Supreme Court said that a college club may not receive public funding if it excludes Gays from membership.

In Christian Legal Society v. Martinez, the court rejected an appeal from the Christian Legal Society, which sued to get funding and official recognition from the University of California's Hastings College of Law.

The CLS requires that members sign a statement of faith which forbids "unrepentant participation in or advocacy of a sexually immoral lifestyle," including being Gay or Lesbian.

Hastings College has a nondiscrimination policy which includes sexual orientation, and an open membership policy for student groups that want school funding.

It therefore denied recognition and funding to CLS in 2004. CLS then sued the school, claiming its members' 1st Amendment rights of association, free speech and free exercise of religion were violated by the non-discrimination policy.

The Supreme Court decision upheld a lower court ruling that Hastings acted properly.

"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 majority opinion. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Ginsburg was joined by the court's other "liberal" justices - Breyer, Sotomayor, and Stevens - and the court's "swing vote," Justice Anthony Kennedy.

In a concurring opinion, Stevens said that the Constitution "may protect CLS's discriminatory practices off campus, [but] it does not require a public university to validate or support them."

"[O]ther groups may exclude or mistreat Jews, blacks and women," Stevens added, "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."

In his concurring opinion, 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.

Justice Samuel Alito wrote the dissent for the court's "conservative" wing, saying the majority opinion was "a serious setback for freedom of expression in this country."

"Our proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,'" Alito said, quoting a previous court decision. "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."

Ironically, the "come one, come all" open membership policy the CLS sought to overturn was first championed by right-wing students seeking to enter and disrupt Black Student Unions and other similar groups in the 1970s. LGBT and religious freedom advocates hailed the court's decision.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the decision a "huge step forward for fundamental fairness and equal treatment."

"Religious discrimination is wrong, and a public school should be able to take steps to eradicate it," Lynn said. "Today's court ruling makes it easier for colleges and universities to do that."

In a statement, Lambda legal said, "The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs."

"Schools all across the country are working to create welcoming environments for all students," the NGLTF said. "This ruling supports that important effort. No school group or organization should be given public money to discriminate against other students."

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