In this country, we are constitutionally entitled to speak and to associate as we like. But the Supreme Court ruled this week that our First Amendment rights do not entitle us to receive a government subsidy to pay for our free speech and association activities.
The lawsuit arose when the Christian Legal Society of the Hastings College of Law, a public law school in San Francisco, announced that it was not going to allow gay students to join its organization. The group insisted, however, that despite its exclusionary policy, it was still entitled to receive the kind of recognition and financial support that the law school provides to other student groups.
A few years ago, the Supreme Court held that the Boy Scouts could not be forced to retain an openly gay scout master because the private organization had a constitutional right to decide who could join its ranks. But in this week's case, the Court properly recognized that Hastings was not requiring the Christian Legal Society to admit individuals whom it wanted to exclude. The Christian group is constitutionally entitled to set its membership rules as it pleases. But it is not entitled to expect a government subsidy in return.
There will be some who will argue that the Court, in its 5-4 decision, is trampling on the rights of religious organizations. But imagine for a moment that a White Supremacist group, whose views were based on religious doctrine, claimed not only that it had the right to exclude African Americans, but that the government was also constitutionally required to pay for some of its activities if it does so for other groups. Most reasonable people would disagree with this organization's legal position. That conclusion should not change simply because the reason for the exclusionary policy is the sexual orientation, as opposed to the race, of potential members.
The Christian Legal Society argued throughout the litigation that it was not barring openly gay law students because of their sexual orientation but because those students engage in sexual conduct that the group believes is morally wrong. In other cases, however, the Court has rejected similar efforts to distinguish between discrimination on the basis of sexual orientation on the one hand and sexual conduct on the other. For example, a few years ago, when the Court struck down Texas's sodomy law, it rejected the government's argument that the law was permissible because it targeted "conduct" rather than "status." To criminalize gay sexual conduct, the Court ruled, was to discriminate against gay people.
This case highlights the tension between two deeply-held American values. As a nation, we cherish the freedom of individuals to believe what they want and to associate with those who hold similar views. At the same time, as our Constitution makes clear, we aspire to live in a society in which the government does not, directly or indirectly, discriminate against individuals because of who they are. It is not always easy to strike the proper balance between these two values. But this is what the Supreme Court did this week when it ruled that, while the government cannot prohibit a religious organization from having whatever beliefs it wants, that organization is not entitled to government subsidies when those beliefs are inconsistent with basic antidiscrimination principles.