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Christian Group Can't Bar Gays, Get Funding At Hastings College, Court Says

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WASHINGTON — An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won't let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group's "discriminatory practices."

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California's Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards "unrepentant participation in or advocacy of a sexually immoral lifestyle" as being inconsistent with that faith.

But Hastings, which is in San Francisco, said no recognized campus groups may exclude people due to religious belief or sexual orientation.

The court on a 5-4 judgment upheld the lower court rulings saying the Christian group's First Amendment rights of association, free speech and free exercise were not violated by the college's nondiscrimination policy.

"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 5-4 majority opinion for the court's liberals and moderate Anthony Kennedy. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Justice Samuel Alito wrote a strong dissent for the court's conservatives, saying the 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."

Leo Martinez, Hastings College of the Law's acting chancellor and dean, said the ruling "validates our policy, which is rooted in equity and fairness."

But the decision is a large setback for the Christian Legal Society, which has chapters at universities nationwide and has won similar lawsuits in other courts.

"All college students, including religious students, should have the right to form groups around shared beliefs without being banished from campus," said Kim Colby, senior counsel at the Christian Legal Society's Center for Law & Religious Freedom.

The 30-member Hastings group was told in 2004 that it was being denied recognition because of its policy of exclusion.

According to a society news release, it invites all students to its meetings.

"However, CLS voting members and officers must affirm its Statement of Faith," the statement said. "CLS interprets the Statement of Faith to include the belief that Christians should not engage in sexual conduct outside of a marriage between a man and a woman."

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 John Paul Stevens was even harsher, saying while the Constitution "may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them."

Stevens, who plans to retire this summer, added that "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 its official imprimatur, or grant them equal access to law school facilities."

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 another case, the Supreme Court refused to hear an appeal from some Texas parents who wanted to stop their school district from regulating when students can pass out religious-themed material to their classmates.

The court refused to hear an appeal from some parents from the Plano Independent School District.

The district in 2005 told elementary students religious-themed material could only be passed out before and after school, at recess, at three school parties or at designated tables. Middle and secondary students could add in lunchtime or between classes.

Parents say the policy dilutes students' free speech rights. The 5th U.S. Circuit Court of Appeals ruled for the school district and the Supreme Court refused to hear the appeal.

The case is Christian Legal Society v. Martinez, 08-1371.

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