Late last month, the Supreme Court announced one of its least important decisions ever in the jurisprudence of “church and state.” One can make this assertion because no matter how the high court ruled, the constitutional order was never imperiled by a cross atop a hill in the Mojave Desert.
Nine days before handing down this decision, the Supreme Court heard oral arguments in another First Amendment case whose outcome will affect Americans everywhere for decades to come. One can make this assertion because everyone’s freedom is imperiled if the state can dictate the membership requirements for religious organizations.
The court’s April 28 ruling was in the case of Salazar v. Buono, involving a white cross erected by members of the Veterans of Foreign Wars more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I. The court battle began when a former employee in the 1.6 million-acre Mojave National Preserve objected to the cross being on a plot of public land. Federal courts in California agreed the display was unconstitutional.
But after an outcry from veterans’ groups, Congress forbade removal of the cross. It declared the site a national monument and engineered a plan to swap the land on which the cross stood for a piece of private land nearby so that the cross was no longer on public property. The lower courts objected to that as well, and the essential question before the high court was whether the land swap solves the constitutional problem.
At the Supreme Court, a splintered plurality of five justices agreed to overturn the lower court ruling voiding the land swap and sent the case back for further litigation. The dissenting four justices were divided among rationales for their rulings as well.
As the Anti-Defamation League — which had previously filed an amicus brief urging the cross’s removal — noted in response to the high court’s ruling, “this is not a case destined to have much impact on religious freedom,” citing the “unique facts and the splintered, technical nature of the decision.”
In sharp contrast to Buono, the stakes in the case of Christian Legal Society v. Martinez could not be much higher.
A group of Christian students at the University of California’s Hastings College of Law sought to open a local chapter of the Christian Legal Society at their school. Like other campus groups, the Christian students sought official recognition from the school so they could have easy access for the use of classrooms, the ability to send out notices via the law school e-mail system and some modest funds from the student activities budget. Although CLS was apparently happy for any Hastings student to attend its meetings, the club required its official members — those with the right to vote, serve as a CLS officer or lead its programs — to subscribe to its tenets of faith.
It was this last element that led Hastings — a state school — to deny CLS recognition. The school asserted that its policy was to insist that all student groups not only allow any student to attend a group’s meeting, but also permit any student to become a member and even an officer. So the Hastings Democrats could not bar Republicans from being leaders of their club, while a pro-choice student group would have to admit pro-lifers, etc. Indeed, if Hastings prevails, any state university will have the right to demand that a Jewish student group allow Jews for Jesus adherents full member status in order for it to be officially recognized at the school.
This threat to the constitutional rights of all associations, including those within our Jewish community, should be alarming enough to make people wonder why some community advocates, such as the ADL and others, would file briefs in support of Hastings. The answer to that question lies in the issues lurking just beneath the surface, which make this case one that has the potential to shape American society for decades.
What particularly offended Hastings was that gay students would be barred from being members of CLS, because the group’s statement of faith objected to “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it defined as “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.”
Hastings and its supporters are effectively contending that the principle of “non-discrimination” is superior to other constitutional freedoms — including First Amendment freedoms of religion and association.
This tension between the constitutional guarantees of religious and associational freedoms, on the one hand, and expansive efforts to grant civil and legal rights to gays, on the other, has surfaced as a prominent aspect of recent debates over an array of legislative initiatives aimed at advancing gay rights, including debates over legal recognition of same-sex “marriages.”
While the debate is often portrayed as a matter of being “for” or “against” gay rights, there is also a less prominent, but no less important, debate over how gay rights laws will interact with religious freedoms. If a law to prohibit employers from refusing to hire people who are gay is enacted, will religious employers be exempt? If a law requiring state contractors not to discriminate against gays in state-funded services is enacted, will a religious foster care agency have its beliefs accommodated with a waiver exempting it from having to place children with gay couples? If the law recognizes same-sex “marriage,” will religious entities that cannot recognize such unions be penalized? In short, will there be a hierarchy of constitutional rights based on a political correctness scale, or can we find a way to resolve constitutional tensions with minimal cost to all sides?
Many Americans are sympathetic to the expansion of gay rights because of a “live and let live” philosophy. But “live and let live” must be a two-way street. The expansion of gay rights should not come at the expense of religious freedom. Otherwise, Americans who adhere to traditional faith principles will increasingly find themselves cast out of the public square and into the desert.
Nathan J. Diament is director of public policy at the Orthodox Union.