The U.S. Supreme Court today granted certiorari in the case of Christian Legal Society v. Martinez , in which a Christian student group challenges a decision of the University of California Hastings Law School to deny official recognition to the group for failure to abide by the school’s non-discrimination policy. That policy requires that membership and leadership positions be open to all students. The Christian Legal Society’s Hastings chapter requires members to sign a statement of faith that vows devotion to Jesus Christ, thereby excluding non-Christians from membership. The Society’s Statement of Faith has also been interpreted to exclude gay and lesbian students. As a result, Hastings denied the Society official recognition and the benefits of recognition, including student activity fee funding.

The Christian Legal Society says it has a right to equal access to school funds and meeting space, even though it discriminates against non-Christian and gay and lesbian students. The CLS is appealing a ruling by the U.S. Court of Appeals for the 9th Circuit, which held that the law school’s action was "viewpoint neutral and reasonable." The 9th Circuit upheld a lower court ruling that the University’s anti-discrimination rules are permissible, regardless of whether they regulate speech or conduct. The lower court decided that even if the school’s policy is a regulation of speech, the school created a limited public forum, so that reasonable, viewpoint-neutral regulations are permissible. The court held that even though the policy particularly affected a group with a certain perspective or belief system, this did not render the policy viewpoint based; the policy applied to all student groups, not just religious groups, and contained no language targeting a specific viewpoint. The court also found that the school was not forcing the Christian Legal Society to admit any student as a member or officer; it was merely placing a condition on receiving university funding and using campus facilities.

The Christian Legal Society points out that the 9th Circuit decision conflicts with a 2006 7th Circuit decision involving the same organization, Christian Legal Society v. Walker . In that case, the appellate court found that the Society’s ability to convey its message would be hampered if it was forced to accept members who disagree with it. It found that the state school had no compelling interest in imposing the policy on the organization.

Cases like these have a tendency to divide First Amendment defenders. Some argue that forcing religious student organizations to open their membership and leadership to all would undermine religious students’ right to free association and expression. But remember that the University is not barring CLS members from associating; it is only denying their association official recognition and funding. Should a public university be forced to recognize and fund a racist student organization, in violation of its general, viewpoint-neutral policy of non-discrimination, because the organization’s racist beliefs are grounded in religion or in a right of free association? This would seem to be the implication. Or consider granting exceptions to non-discrimination policies in the interest of accommodating religious student groups. How is it "equal treatment" to say that student organizations engaging in discrimination cannot receive funding, unless the organization is a religious one?