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Supreme Court Says Federally-Funded Student Groups Can Deny Homosexuals Memberships?

April 20, 2010

Ah Samuel Alito, one of the Federal Supreme Court Justices with such extraordinary talent for endorsing discrimination asked whether or not it was fair for a Christian student group to be “taken over” by other members who might be homosexuals if the student group wasn’t allowed to deny homosexual students membership into the Christian Legal Society:

Say “there is a small Muslim group; it has 10 students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say First Amendment allows that?” Alito said.

Garre said that has never happened to a group.

“CLS obviously thinks this is a real threat,” Alito said. “Now, what do you propose that they do?”

Garre said the members who are now outnumbered can leave the group.

“If hostile members take over, former members of CLS can form CLS 2?” Alito asked skeptically.

The Christian group could require knowledge of the Bible to join, Garre said. “There is a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit,” he said.

Aside from the fact that Alito rather stupidly compared discrimination against Muslims with discrimination against sexual orientation, the argument is flawed in that every non-profit could essentially be “taken over” by members other than those who started the organization, and this applies to all non-profits, not just student organizations.

Justice Scalia, another who makes my list of bigoted justices, made the comment that no Christian organization should have to allow non-Christians voting privileges, even if they receive public funds:

“It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership,” Justice Antonin Scalia said. “To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”

Other justices questioned where a ruling for the Christian group would lead.

“Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?” asked Justice Sonia Sotomayor.

No, McConnell said. “The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis, Hastings is able to enforce.”

“What if the belief is that African Americans are inferior?” Justice John Paul Stevens said.

“Again, I think they can discriminate on the basis of belief, but not on the basis of status,” McConnell said.

McConnell, for the record, is the lawyer for Christian Legal Society.  Let’s just examine Scalia’s argument that compares political parties to allowing a student group to discriminate based on sexual preferences when it’s already established federal law that any school receiving public funds may NOT discriminate based on sexual orientation and our charter governmental standard of separating the church and state, and one wonders how exactly Scalia compares any rights to start a group with rights to keep a publicly-funded group solely determined by an individual religious belief.  There is no guarantee in any publicly-sponsored group that all religious groups get to discriminate based on their own policies.

It’s important to note that the school that denied the Christian Legal Society school recognition, and therefore access to public funds, University of California Hasting’s College of Law is obligated by federal mandate to NOT discriminate based on sexual orientation in order to continue to receive federal funds.  If the Hasting College of Law recognized this student organization and allowed access to public funds, then the separation of church and state disappears.  What’s even more troubling is that the CLS sued another school and was recognized as a student organization at that school back in 2007 at Southern Illinois University, despite the CLS mandate that its members not abide homosexuality.

Justices Stevens and Sotomayor offered pointed counters to the concept that discrimination based on belief was allowed, but with rumors swirling about Stevens retiring (The New Yorker has an article hinting to this idea too), the religious right in the form of Scalia and Alito may get their ways.

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