The Solomon Amendment and CLS

Rob notes that the SCOTUS decision upholding the Solomon Amendment, Rumsfeld v. FAIR, was cited by the district judge who rejected the Christian Legal Society's claim not to be excluded from recognized student-group status at UC-Hastings Law School.  (Full disclosure about what follows; I sit on  advisory boards for CLS and for organizations asserting the right not to be excluded from government programs because they require statements of faith and adherence to standards of sexual conduct.)  Applying FAIR to the CLS case contravenes statements in the FAIR opinion and other associational-rights cases, and at the very least extends FAIR markedly.

(1) FAIR involved a withdrawal of federal (DOD) funding from the complaining law schools.  But Hastings withheld from the CLS chapter not just funds, but also the ability to use the school's name and to advertise to students through a host of school media (e-mail, newsletter, website, organizational fair, student information center, certain bulletin boards).  In a host of student-group decisions beginning with Widmar v. Vincent, 454 U.S. 263 (1981), the Court has treated selective denial of access to public facilities as a First Amendment burden far greater -- and subject to a stronger presumption of invalidity -- than denials of funding.

(2) The district judge inexplicably argued that CLS had not shown how being forced to open its membership and leadership to "lesbian, gay, bisexual or nonorthodox Christian students would impair its mission. Significantly, unlike the Boy Scouts in [the Boy Scouts v. Dale case, 530 U.S. 640 (2000), involving an openly gay scoutmaster], CLS has not submitted any evidence demonstrating that teaching certain values to other students is part of the organization’s mission or purpose."  This not only contradicts the theme in Dale -- widely recognized as central to that decision -- that courts should defer to an organization's understanding of its mission.  (If the Boy Scouts were held to be communicating messages about the preferability of straight behavior, how can one possibly claim that CLS is not communicating messages for "orthodox" Christianity and against same-sex conduct?)  In addition, the district judge's reasoning, by treating forced admission to membership as not that serious a burden, contradicts the following passage in FAIR where the Court noted that the law schools were only required to associate with the military to the limited extent of allowing its recruiting on campus:

Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " ‘to accept members it does not desire.’"

The Hastings ruling pressures CLS to drop requirements for its leaders and for the members who are eligible to vote for its leaders.  How can this not threaten to affect the organization's ability to preserve its views?

Yes, I think that if the Hastings ruling stands, it and others like it would greatly extend FAIR, wiping out FAIR's limitations and qualifications.  A major attack on subsidiarity.  (Lest I be personally misunderstood, the issue here is not whether bans on religious and sexual-orientation discrimination by student groups are a good idea generally -- they are.  The issue is whether such bans must be applied to a religious group for whom for doctrinal beliefs and sexual-behavior standards are integral to its religiously based understanding, much as beliefs in environmental protection are integral to the law student Sierra Club chapter.)

Tom