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Supreme Court rules for non-discrimination in public schools


By Julia Rosen

The best summary of this case I’ve seen was by Adam Bonin over at Daily Kos, who writes:

And today it’s My Religion Doesn’t Like The Gays versus Our Policies Say You Can’t Discriminate Against Gays, in the context of the a student religious group at the Hastings College of Law — a part of the California public educational system.

The schools won with a 5-4 ruling. The Supreme Court upheld the ability for public schools to deny recognition and funding to campus organizations who violate the school’s non-discrimination policies. In this case the University of California’s Hastings School of Law had in place a non-discrimination policy against LGBTs and the had a request for recognition/support from Christian Legal Society, whose by-laws include:

In view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual
from CLS membership…. [including] all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.

Ruth Bader Ginsberg, whose husband recently passed away read the majority decision in court today. Kennedy and Stevens wrote concurring decisions. Alito wrote the dissent.

Adam adds this crucial reminder of the limitations of this ruling:

It’s important to recognize the limits of today’s decision. It’s not “all student groups must allow all students at all campuses.” It’s simply this: if a school wants to have an “all comers” policy, then it’s allowed to enforce it and override the discriminatory beliefs of a group seeking recognition — in other words, that the government is not required to fund discrimination. Different universities, however, can make their own decisions as to what works for them.

We can’t really see this as a test of how Perry v. Schwarzenegger would go, but it is heartening to once again see Justice Kennedy on the side of the good.

Tags: ,


  • 1. JonT  |  June 28, 2010 at 11:08 am

    Just Subscribing

  • 2. Alan E.  |  June 28, 2010 at 11:25 am

    Me too

  • 3. Bolt  |  June 28, 2010 at 11:30 am

    I disagree, totally. "We can’t really see this as a test of how Perry v. Schwarzenegger would go[.]" Alito, Thomas, Scalia, and maybe Roberts, are drunk on religion.

  • 4. Owen  |  June 28, 2010 at 1:35 pm

    Exactly. If they can't even pass this rudimentary test – the correct ruling SHOULD be rather obvious – then there is absolutely ZERO hope for them come judgment time with Perry v. Schwarzanegger.


  • 5. Ed-M  |  June 28, 2010 at 6:46 pm

    In my opinion, three of them definitely suffer from the excessive committment to a (usually conservative) Christian religion to the extent that they lose touch with reality or cannot accept the light of new facts upon reality. Roberts? He used to be friends with gay college students while at Harvard and even by his own initiative, helped write the majority opinion in Romer v. Evans. What happened to him? Did he become over-committed to religion too?

  • 6. Bolt  |  June 29, 2010 at 4:39 am

    I don't know for sure. I'm simply ranting, and basing my opinions on media stereotypes.


  • 7. Kevin  |  June 30, 2010 at 7:36 am

    Roberts wasn't on the court when Romer was decided.

  • 8. Richard A. Walter (s  |  June 28, 2010 at 11:46 am


  • 9. Ronnie  |  July 3, 2010 at 12:06 am


  • 10. Kathleen  |  June 28, 2010 at 1:05 pm

    From Stevens's concurrence,
    "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."

    Here's an article from Lambda Legal

    As a side note, Jon Davidson was one of my law school professors

  • 11. Straight Ally #3008  |  June 28, 2010 at 1:12 pm

    What's troubling is that this was 5-4 rather than 9-0. Amazing.

  • 12. Kathleen  |  June 28, 2010 at 1:19 pm

    I agree. Both sides stipulated that the non-discrimination policy was to be interpreted as an "all-comers" policy, meaning that the policy simply meant the organization must be open to all Hastings students. It makes me wonder if the dissenting justices would have ruled differently if this had been a Muslin Student Organization excluding Christians — would have been the same considerations.

  • 13. Ed-M  |  June 28, 2010 at 6:48 pm

    Kathleen, I have no doubt in my mind it would have the same 5-4 outcome. Equally troubling.

  • 14. PamC  |  June 28, 2010 at 11:58 pm

    Just the fact that the Xn group believed that they had the right to exclude is so in keeping with their parochial, self-absorbed history. It's all about "the children" (OUR children) and "the family" (OUR families). Christianity with a spirit for social justice is sadly lacking in many if not most evangelical/fundy circles. Which is amazing, because if you take their bible literally, there are hundreds of references to helping the poor and including all people at the feast, as opposed to the few scattered and probably misinterpreted references to same-sex sex.

    Their assumption of entitlement to an exclusive club (the "chosen few") is arrogant, but typical of their "god will make me wealthy if I pray" self-centered beliefs.

  • 15. PamC  |  June 29, 2010 at 12:01 am

    I should have specified "right to exclude & get funding for it", as per the decision.

  • 16. Franck  |  June 29, 2010 at 12:23 am

    When it comes to the relationship between Jesus's original teachings and the position most 'Christian' denominations hold today, this strip sums it up nicely:

  • 17. PamC  |  June 29, 2010 at 12:52 am

    Awesome. Just posted the 'toon to my facebook page. 🙂

  • 18. Bob  |  June 29, 2010 at 4:18 am

    "because if you take their bible literally" please focus on Paul's letter to the Corinthians 11 v 17 What I am saying I say not with the Lord's authority, but as a fool, in this boastful confidence; since many boast of worldly things, I too will boast.

    Paul was known for ranting, getting all excited and going on, here he admitted speaking not from the inspiration of God, in another place he admits, his prophecy is imperfect.

    That is as literal as you can get, that the prophets some times stretched their words.

    Of course as you say THEIR Bible, may mean the book of momon but this one is the King James Version, I still don't know how they get around this to say all the bible is the inerrant word of God.

  • 19. egroeG  |  June 29, 2010 at 12:21 am

    So would they BAN me from joining the LGBT society? Or would they just ban me from speaking?

  • 20. PamC  |  June 29, 2010 at 12:51 am

    Neither. Clubs which discriminate just can't get school funding, that's all. They could still get funding as long as they are open to all students, and meet without funding if they are not.

  • 21. PamC  |  June 29, 2010 at 12:54 am

    Sorry! I fed it.

  • 22. fiona64  |  June 29, 2010 at 1:33 am

    George, get lost.


  • 23. Ronnie  |  July 3, 2010 at 12:13 am

    wow…I mean really stalker-ish here

    now its Envious Guy Revering Our Energetic Gayness


  • 24. David Kimble  |  June 29, 2010 at 12:43 am

    As I recall from the trial, our team (Boise/Olson) were very specific in their approach – not adopting traditional reasoning for leagalization of Gay and Lesbian marriages. They argued on the basis of sound law principles, which I believe are sound enough to overturn Prop8, even at the Supreme Court level. <3 David

  • 25. Richard A. Walter (s  |  June 29, 2010 at 2:19 am

    George (Just so you know that you aren't smart enough to fool anybody here into thinking that this is someone new),
    Anti-discrimination laws are needed to protect people from idiots like you. Idiots who are not grown up enough to accept that there are other religions, other paths to G-d besides the uber-conservative, self-loathing Westboro "Baptist" Church. Before you start spouting off at people who are different from you, and telling them that thehy are inferior, you might want to go back and read the teachings of Yeshua ben Yosef of Nazareth and do so WITHOUT the filters of the lies you have been taught about the man. Otherwise, you are in for a very bad time of it at the judgment table.

  • 26. Mark M. (Seattle)  |  June 29, 2010 at 2:25 am

    The groups would most certainly accept any and all students with an actual desire to be legitimate members of said group.
    Once they broke with the by-laws (namely hate speech towards other members or the group itself) they would than be asked to leave….no harm no foul.
    NOW GET THE 'F' OUT OF HERE!!!!!!!

  • 27. Misken  |  June 29, 2010 at 2:51 am

    Methinks Kennedy is sympathetic to the LGBT cause. With the exception of Hollingsworth v. Perry; the camera case (which is rather limited in relation to the LGBT cause), every single case so far has him siding on the right side.

    Romer v. Evans, Lawrence v. Texas, Doe v. Reed, and now CLS v. Martinez. *fingers crossed*

  • 28. Mark M. (Seattle)  |  June 29, 2010 at 3:42 am

    AFA is at it again. This time asking its members to boycott HomeDepot for theor support of various Pride events.

    The letter they are asking you to sign and send is easily altered, and can be turned as I did into a positive expression of support.

  • 29. PamC  |  June 29, 2010 at 5:06 am

    I just copied the e-mail address and sent it via my personal e-mail. I'm already getting spam from NOM and didn't want AFA to crowd my inbox.

    Love thanking Pride sponsors, esp. those targeted by the haters.

  • 30. nightshayde  |  June 29, 2010 at 7:57 am

    Here's my altered letter:

    Dear Chairman Blake:

    Your company's financial support of gay PRIDE parades is encouraging to me.

    Home Depot's decision to include children's activities at these events is fantastic. In these times when so many people seem willing to discriminate against non-traditional families, the fact that you went out of your way to reach out to children makes me love your company more than I already had.

    By offering craft workshops specifically designed for children, Home Depot is encouraging their attendance at PRIDE events, which is a great way for them to see that there ARE people out there who don't judge people based on sexual orientation — and that kids with two moms or two dads are just like all the other kids out there.

    The sensible people in this world know that teaching children to be loving and tolerant will help to counteract the strident voices of those who think accepting GLBT families exposes kids to unhealthy and risky environments. Teaching them hateful lessons about discrimination and exclusion is far too easily handled by fundamentalist churches.

    I'm imploring you to put the safety and well-being of children first by continuing to sponsor and participate in GLBT-friendly events. Discrimination is wrong — and by helping to fight it, you're standing on the right side of history.

    I will happily continue to shop at Home Depot, and will encourage all my relatives, friends, and acquaintances who believe in equal rights for ALL to do the same.

  • 31. Kathleen  |  June 29, 2010 at 8:10 am

    Here's my own:

    Subject: THANK YOU for your sponsorship of 2010 Pride Events

    Dear Chairman Blake,

    I am writing to thank you for lending Home Depot's corporate sponsorship to several of this year's gay pride events.

    I realize Home Depot is receiving negative attention from some of the more conservative factions in our society for doing so, and especially for offering crafts and other activities for children. However, as someone who has fought the good fight to instill the positive values of embracing diversity and cooperation in my own children and grandchildren, I was pleased to see Home Depot's sponsorship and participation.

    As a home owner who frequently does DIY repairs and renovations, I am a long-time customer of Home Depot and this latest corporate decision has made me feel even better about spending my money in your stores. From now on, when I have a choice between Home Depot and a competitor, I will remember the image of all those Home Depot employees in their orange aprons, proudly marching in the parade displaying the banner "Home Depot Celebrates Diversity."

    Kathleen Perrin
    (City, State, Zip)

  • 32. Misken  |  June 29, 2010 at 3:15 pm

    Great! Mind if I use that? 😀

  • 33. Kathleen  |  June 29, 2010 at 3:21 pm

    Misken, I don't know to whom the question was directed, but you're welcome to use any part of mine you want to.

  • 34. Ben  |  June 29, 2010 at 12:30 pm

    Oh no! They were "loud and boisterous gay activities"! … Couldn't they simply have called them gay? After all, loud and boisterous combined with gay is simply restating the same term again, and can lead to terminal levels of purple prose. But I digress. Unless they're referring to the Folsom Street Festival as a Gay Pride event, most of these events will hardly showcase anything more "offensive" than some couples kissing—nothing worse than what you'll see on any normal street on any normal day. Just because a day has a Gay Pride event does not make it much more different than any other day. (Yes, the passover reference is intentional.) Also, I think they worry too much about transvestites … if that's what they're complaining about.

  • 35. PamC  |  June 29, 2010 at 9:31 pm

    Home Depot sent this very nice canned response–but as my spouse (who is a manager in the customer service field) told me, a human being chose this canned response:

    From: Customer care
    Sent: Wed, June 30, 2010 5:31:12 AM
    Subject: Southern Maine Gay Pride

    Dear Customer,

    We appreciate you taking the time to forward your comments! We always encourage our local store associates to support and engage their local communities.

    We will forward your comments to The Home Depot upper management.

    We look forward to your continued patronage and assisting you with all of your home improvement needs.


    Customer Care

  • 36. Billy  |  June 29, 2010 at 11:32 pm

    Meh, my safari browser said the site contained malware, so I just closed it without reading D:

  • 37. Richard A. Walter (s  |  June 30, 2010 at 3:53 am

    I did not even bother with the email. I just finished talking with Brad Shaw's administrative assistant on his direct dial line, and I let them know that we are going to be spending MORE of our DIY dollars at Home Depot than we already do. The change in that young lady's voice was tremendous. So, I would advise everyone here to not only counteract the AFA email, but also to call in and verbally express your support of Home Depot. Believe me, they need to hear our voices as well as read our emails.

  • 38. Andrew_WA  |  June 29, 2010 at 5:18 am

    mmmm….. cupcakes……

    What's funny about George's post is that he actually has answered his own question.

    The group that is wanting the segregation and asking for special treatment based on belief IS a Christian group.

    The LGBT group is doing fine and accepting people as they are – whatever their background. They are abiding by the policies and are receiving funds.

    The Christian group on the other hand has created by laws for exclusion while asking for public funding. Being that there is an conflict, it is the Christian group that is pushing for the right to discriminate – not the LGBT group.

    The bottomline is – can a religious based organization accept public funding from the school / govt if it has by-laws or practices discriminatory/exclusionary behavior.

    I have a question for George (but he is no longer here – right?) – If I am a Unitarian (Christian that believes in same sex marriage) and I have a group that is religious as well but does not support these by-laws – where does the law abide in this case?

    I mean – we BOTH are using the shield of religious freedom here to support our "values". How can a judge or law rule on this?

    Either way, someone's religious beliefs will get trampled and since that is the cornerstone of your argument, whom is right and whom is wrong?

    What would the Catholics do if you excluded them? What would the Jews do? Muslims? Buddhists? Each as religious rights and freedoms…

    Does it all boil down to a religious pecking order?

    "um – ok… how about Catholics first, then Christians, then Jews, Mormons, then Muslims….. ……. then Unitarians.


  • 39. Kathleen  |  June 29, 2010 at 5:43 am

    UPDATE: Theodore Boutrous (atty for Plaintiffs) submitted a letter to Judge Walker, bringing to his attention yesterday's decision in Christian Legal Society v Martinez, noting that the Court "held that sexual orientation in not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class."

    He contrasts that with Cooper's closing argument claim that the case High Tech Gays (which relied on the overturned Bowers v Hardwick, or as Boutrous puts it "rested on a moth-eaten foundation") means heightened scrutiny can not apply.

    Boutrous concludes, "To the extent that anything is left of High Tech Gays after Lawrence, Christian Legal Society has abrogated it entirely."

    Letter with CLS v Martinez decision attached available here:

  • 40. Alan E.  |  June 29, 2010 at 5:50 am

    I love your dedication. This is exciting news! Even if this doesn't change much for this ruling, it surely will help by at least a million points in the next rounds (give or take a couple hundred thousand).

  • 41. PamC  |  June 29, 2010 at 5:51 am

    That means we're suspicious–I mean, a suspect class? Cool. Love how prompt he is to jump with this on our behalf.

  • 42. Kathleen  |  June 29, 2010 at 6:28 am

    Not necessarily suspect class – could be "quasi-suspect." But if strengthens the argument for some level of heightened scrutiny, either 'strict' or at least 'intermediate.'

    A nice parting gift by Justice Stevens.

  • 43. Kathleen  |  June 29, 2010 at 6:30 am

    That was meant to read "it strengthens" not "if strengthens"

  • 44. PamC  |  June 29, 2010 at 6:48 am

    This is much better than "rational basis" alone, right? I remember the discussion from a few months ago, just refreshing my memory.

  • 45. fiona64  |  June 29, 2010 at 7:08 am

    PamC: you remember correctly. "strict" or "intermediate" scrutiny is a higher level of consideration than "rational basis."


  • 46. Kathleen  |  June 29, 2010 at 7:59 am

    Yes, in broad terms, the level of judicial scrutiny are:

    Rational basis: the law need only be 'rationally related' to a 'legitimate' state interest

    Intermediate: the law must be 'substantially related' to an 'important' state interest

    Strict: the law must be 'narrowly tailored' and be the 'least restrictive means' for furthering a 'compelling' state interest.

    The other advantage to heightened scrutiny is in where the burden of proof falls. If the law is subjected only to rational basis, the burden of proof remains with plaintiffs. However, once plaintiffs prove that heightened scrutiny applies, then the burden shifts to defendants to prove that the law can withstand the appropriate level of review.

  • 47. Straight Grandmother  |  June 29, 2010 at 8:16 am

    Kathleen, I assume you read the 80+ page decison by the Supreme Court. It was quite a read wasn't it? I particularly LOVE the consternation of Justice Alito this was near the bottom of the second to the last page, "affirmance in this case “will allow every public college and university in the United States to ex- clude all evangelical Christian organizations"
    Yippie I say!! In my opinion they have freedom of speech, freedom of association and freedom of religion and they can all huddle together and hate us every darned Sunday if they want to. BUT our PUBLIC universities paid for by tax dollars do NOT have to allow them to be a recognized student group that gets funding from the University to spit out their hatred. They will simply have to go hate in private then and they are NOT afforded a public forum on our university campuses.

    I especially like Justice Ginsberg comment that the Student groups get money from the university via Student fees that all students are required to pay. Her point is that it is unfair to gays and lesbians, Bi & Transgender people to be forced to pay money to a group that will not permit them membership. In other words GLBT's student money would go towards supporting discrimination against them. I need to go back and find the exact words from Justice tevens that Boudrou referneces in his letter to Judge Walker.

    I have been reading up on Justice Ilito and Scalia, both Catholics and reading thier opinions. Those 2 are hard core man, real hard core. Their religion I feel definatly is affecting the way htye judge cases. Both fo these Justices REALLY do not like gays and lesbians, Bi & TG people AT ALL.

  • 48. Monty  |  June 29, 2010 at 5:52 am

    Re: George (and all his subsequent incarnations)'s_Law
    Either that or he's just a troll. I'm convinced at this point.

  • 49. Monty  |  June 29, 2010 at 5:53 am

    Urgh, link broke. Click here if you don't want to copy/paste.

  • 50. Kathleen  |  June 29, 2010 at 6:29 am

    UPDATE: Proponents file Motion for Administrative Relief, asking the Court to order Plaintiffs to immediately return to the Court all copies of the trial video in their possession. Filed 6/29/10

  • 51. Kathleen  |  June 29, 2010 at 6:30 am

    Also: Doc 697 – Declaration by Peter A. Patterson in support of Motion for Administrative Relief (Doc 696) Filed 6/29/10

  • 52. JonT  |  June 29, 2010 at 6:37 am

    Man… are they really that afraid of how stupid they will look if the video leaked out? What else could it be?

  • 53. Monty  |  June 29, 2010 at 6:39 am

    As if we didn't already know how stupid they are.

  • 54. fiona64  |  June 29, 2010 at 7:09 am

    In their heart of hearts, they know that they are up to something shameful. That's why they don't want it exposed to the light of day.


  • 55. JonT  |  June 29, 2010 at 7:13 am

    Well, here's hoping that video 'leaks' out someday 🙂 It's freakin history!

  • 56. Straight Ally #3008  |  June 29, 2010 at 7:20 am

    Somewhat on-topic, I'm liking what I'm hearing from the Elena Kagan confirmation hearings. She continues to oppose DADT and is in favor of TV cameras in the Supreme Court. Plus, the usual suspects are losing their collective sh-t and opposing her nomination, which is always a plus in my book. 😉

  • 57. Straight Ally #3008  |  June 29, 2010 at 7:22 am

    Also! I think that for George (not all people, just George) to join the LGBT group, during the meetings he must wear a shirt that reads, "I LOVE the c*ck."

    (sorry >;-D )

  • 58. nightshayde  |  June 29, 2010 at 7:33 am

    But … but … but what if I don't like chicken?

  • 59. Richard A. Walter (s  |  June 29, 2010 at 7:45 am

    Then stay away from Southern Baptists LOL! I like your reasoning though, nightshayde

  • 60. Ronnie  |  July 3, 2010 at 12:18 am

    lol….I love you guys/gals……<3…Ronnie

  • 61. nightshayde  |  June 29, 2010 at 8:43 am

    Do we have any inkling yet as to when the verdict will be announced? I was hoping it would be during June after the judge's comment about June weddings… but there's only one day to go (which wouldn't dovetail with the 48-hour advance media notice request).

    Please pardon me if I'm not making sense. My head hurts. =(

  • 62. Kathleen  |  June 29, 2010 at 8:49 am

    You're making perfect sense. Sorry you're head hurts.

    But we don't have any real indication on a timeline. I had been told the attorneys expected it to be a "few weeks." (I was predicting sometime in the first or second week of July). But then I read a recent interview with David Boies which quoted him as saying he expects August sometime. We also don't know whether Walker intends to grant the request to give 48 hours advance notice.

  • 63. Kathleen  |  June 29, 2010 at 8:50 am

    that, of course, should be "your" head….

  • 64. Kathleen  |  June 29, 2010 at 9:09 am

    Kind of off topic, but a great piece by Marine Corps Captain Robert Merrill on Elena Kagan's attitude toward the military, as demonstrated while Merrill was a law student at Harvard.

  • 65. nightshayde  |  June 29, 2010 at 10:16 am

    Thank you for posting that, Kathleen!

  • 66. Straight Grandmother  |  June 29, 2010 at 9:35 am

    I smell a rotton fish here, what do you think? Okay so I went and looked up the Christian Law Society and they had links to Amicu Briefs supporting their side. There is supposedly a gay and lesban group that is FOR the Christian Law Society. Here is their Amicu Brief.

    I can hardly believe this, this has to be some kind of a fake front organization created soley to file amicus briefs. We need to investigate this so called gay and lesbain group more..

    I noticed on the Christian Law Center website they sued Boise State and go them to re-write their student organization criteria to admit them. I hope the gays and lesbians at Boise Ste read the news and bring this back up now that the Supreme court has ruled.

  • 67. Alan E.  |  June 29, 2010 at 9:51 am

    This is the only page I could find about the group:

    The page was last updated Feb 11, 2008.

    Their news section is very out of date, too.

  • 68. Kathleen  |  June 29, 2010 at 11:26 am

    UPDATE: Plaintiffs' opposition to Proponents' Motion to compel return of trial videos.

    For those who can't access Scribd — here's the relevant portion:

    "Because this Court has yet to issue its decision and may request additional arguments or briefing before doing so, Defendant-Intervenors’ request for the immediate return of the trial video should be denied as premature. Plaintiffs and Plaintiff-Intervenor respectfully propose that once judgment is entered, the parties and the Court evaluate whether, and to what degree, the trial recording would be useful to the parties or to the Court in connection with any additional proceedings and/or appeal. In the meantime, the protective order remains in place and ensures that the trial recording will not be publicly disclosed."

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