The school’s action not only raises questions about the CLS students’ freedom of association ”” which lead counsel Michael McConnell compellingly raised in Monday’s oral arguments before the court ”” but it also threatens a founding principle of religious freedom. Hastings says that it is banning discrimination against gays and lesbians, but they are doing so by singling CLS out and punishing it for its religious beliefs. If a future, more liberal CLS leadership decided to allow voting members to promote or engage in premarital or homosexual intercourse, they would obviously regain official status because they will have adopted the school’s preferred belief: the affirmation of homosexual practice.
This decision could set a precedent for broader state action against traditional religious groups. Would the court be prepared to apply the all-comers standard to organizations representing any and all faiths? The justices should remember that many religions, including Judaism, Islam, Hinduism and Sikhism have significant constituencies with similar beliefs about sexual behavior.
Christians like those in the CLS hold that the Old and New Testament’s prohibitions against premarital and homosexual sex still apply today. This is a serious, albeit disputed, religious belief about sexuality that is protected by the First Amendment. Authentic freedom of religion requires broad, utterly compelling justifications for the state to deprive anyone of privileges because of his beliefs, no matter how offensive the precepts in question are to some Americans. We should not require religious organizations such as the CLS to abandon core convictions in order to remain in the state’s good graces.
The smell-test ought to be somewhat straightforward here: would a putative Women’s Legal Society be sanctioned similarly for limiting membership to females? Would a Black Legal Society be sanctioned for excluding an Aryan Nation member?
If not? Blatant anti-Christian discrimination. Full Stop.