Supreme Court Missed the Mark on Religious Freedom

by | Jun 29, 2010 | Charisma Archive

It is a decision that is both disappointing and
troubling.  By a vote of 5-4, the
Supreme Court dealt a damaging blow to First Amendment law for religious
organizations in the case of Christian Legal Society v. Martinez

The Supreme Court was presented with the
following question: “May a public law school condition its official
recognition of a student group-and the attendant use of school funds and
facilities-on the organization’s agreement to open eligibility for membership
and leadership to all students?”

By a one-vote margin, the high court upheld the
University of California-Hastings College of Law’s application of its policy
withholding recognized student organization status from any group that excludes
members on the basis of religion or sexual orientation (among other things) to
the Christian Legal Society (CLS).  

CLS sought to ensure that its members and leaders
would adhere to a statement of faith and code of conduct, including the belief
that sexual activity should not occur outside of a marriage between one man and
one woman.

CLS said it
could not abide by the school’s non-discrimination policy. That policy forbids
student groups from discriminating on the basis of, among other things,
“religion.”   CLS says its
religious beliefs prevent non-Christians from exercising control over the group
by becoming voting members or serving in leadership positions.  By a one-vote margin, the Supreme Court
upheld a decision by the U.S. Court of Appeals for the Ninth Circuit and
rejected CLS’s position.

decision significantly limits the constitutional rights of religious
organizations. The court missed the mark in understanding that it is
fundamental to religious freedom and the freedom of speech that religious
groups are free to define their own mission, select their own leaders and
determine their own membership criteria. By permitting a problematic decision
by the federal appeals court to stand, the Supreme Court decision represents,
as Justice Samuel Alito correctly concluded in the dissent, “a serious setback
for freedom of expression in this country.” 

We have argued that the First Amendment
prohibits a public law school from denying recognition to a religious student
group because the group requires leaders and members to agree with its core
religious viewpoints.

filed an amicus brief with the Supreme Court in the case representing more than a dozen Christian leaders
and organizations active on college and university campuses-including
Fellowship of Christian Athletes, Campus Crusade for Christ, InterVarsity
Christian Fellowship, Young Life, the Navigators and the Fellowship of Catholic
University Students.  

In our
amicus brief, we spelled out very clearly our belief that religious groups are
constitutionally protected in following their religious beliefs.

groups by their nature embrace religious principles and, as a matter of
organizational identity and coherence, will normally require adherence to such
principles as a criterion for membership and certainly for leadership,”
the brief asserted.

is not ‘discrimination’ but rather part and parcel of what defines them as
religious groups,” it continued. “Wooden application of religious ‘non-discrimination’
policies therefore forces religious groups to choose between their religious
identity and access to the forum. That ‘choice’ is an unconstitutional one
between yielding to government intermeddling and no access at all. Far from a
permissible condition on benefits, this is a choice that the government, under
the Religion Clauses, has no business imposing on religious groups.”

In the majority opinion written by Justice Ruth
Bader Ginsburg, the court concluded that CLS, in order to be recognized as a
student organization, must accept all students who wanted to join the group.
“CLS, it bears emphasis, seeks not parity with other organizations, but a
preferential exemption from Hastings’ policy,” she wrote.  “Compliance with Hastings’ all-comers
policy, we conclude, is a reasonable, viewpoint-neutral condition on access to
the student-organization forum.”  

in a well-written and sound dissent, Justice Samuel Alito, joined by Chief
Justice Roberts, and Justices Antonin Scalia and Clarence Thomas rejected the court’s
analysis, calling the decision “a serious setback for freedom of expression in this

As Justice
Alito wrote: “Our First Amendment reflects a ‘profound national commitment
to the principle that debate on public issues should be uninhibited, robust,
and wide-open.’ New York Times Co. v.
, 376 U. S. 254, 270 (1964). Even if the United States is the only
Nation that shares this commitment to the same extent, I would not change our
law to conform to the international norm.

“I fear
that the Court’s decision marks a turn in that direction. Even those who find
CLS’s views objectionable should be concerned about the way the group has been
treated-by Hastings, the Court of Appeals, and now this Court. I can only hope
that this decision will turn out to be an aberration.”

Alito disagreed with the court’s characterization of the school’s policy as a
neutral “accept-all-comers” policy, noting the existence of numerous
recognized organizations at the university that could be harmed by such a
policy, including political, pro-life, pro-choice, religious, ethnic identity,
feminist and animal-rights groups.

The impact
of the high court’s flawed analysis raises further concern. Justice Alito
compared the Hastings policy to a hypothetical state law, stating: “The
State of California surely could not demand that all Christian groups admit
members who believe that Jesus was merely human. Jewish groups could not be
required to admit anti-Semites and Holocaust deniers. Muslim groups could not
be forced to admit persons who are viewed as slandering Islam.”

Given the court’s
rejection of Justice Alito’s analysis, however, one could make the argument
that a student Jewish Anti-Defamation League organization could be forced to
admit Muslims, or that a black student organization would have to admit white
supremacists to its organization.

What will
happen going forward on college and university campuses?  What will Christian organizations face?  Will other public colleges and universities
modify their anti-discrimination policies to mirror the “accept-all-
comers” policy that the court based its decision on?  Will those outside of the educational system
seek to apply this decision to limit equal access to their facilities for
religious groups?   

Yes, this
decision raises a host of questions. But the fact is that it is simply too
early to tell. The majority opinion does not decide the issue. However, one
thing is clear: There will be more litigation-more challenges-as a result of
this decision. 

It is our hope,
like Justice Alito, that this decision will be an aberration and not a shift in
First Amendment jurisprudence.


Jay Sekulow is chief counsel
of the American Center for Law and Justice (ACLJ), a Washington-based
constitutional law firm focusing on preserving religious liberty. The ACLJ is
online at


Stay up-to-date with current issues, Christian teachings, entertainment news, videos & more.

The latest breaking Christian news you need to know about as soon as it happens.

Prophetic messages from respected leaders & news of how God is moving throughout the world. 


WATCH: Vlad Savchuck: Life, Health and the Bible

WATCH: Vlad Savchuck: Life, Health and the Bible During a recent visit to @HungryGeneration, Pastor Vlad Savchuk asked Bill Wiese to comment on his personal experience applying the Word of God to his own life and health. These same principals hold true for all who read and...

Miraculous Divine Intervention Birthed by Thanksgiving and Praise

Miraculous Divine Intervention Birthed by Thanksgiving and Praise

Read Time: 4 Minutes 2 Seconds When I first became a believer in 1970, my mother was one of my first “converts," giving her heart to Jesus as soon as I shared with her the beauty, the power and the opportunity of making Jesus the Lord of her life. However, my father...

I’m Going Defcon G on the Enemy

I’m Going Defcon G on the Enemy

Read Time: 1 Minute 32 Seconds The last six years have been the best of times and the worst of times. I’ve seen more death, destruction, disease and devastation than I care to remember. I’ve also seen the hand of God move in extraordinary ways. Indeed, sometimes I...

Prophetic Vision: ‘Now is the Time of Your Healing’

Prophetic Vision: ‘Now is the Time of Your Healing’

Read Time: 3 Minutes 41 Seconds I was remembering a time when my husband and I were praying over friends who had been in a situation for many years that had caused deep trauma to their souls. As we were praying for them, I became aware of an angel standing over them...

Victimized By Gaslighting? 5 Steps to Finding Freedom

Victimized By Gaslighting? 5 Steps to Finding Freedom

Read Time: 2 minutes 26 seconds The term "gaslighting" has gone viral across social media this year and Merriam-Webster chose it as their word-of-the-year, saying searches for the word spiked 1,740% in 2022 alone. We're breaking down what the Bible has to say about...

Learn How to Be Grateful From Those Who Have So Little

Learn How to Be Grateful From Those Who Have So Little

Read Time: 3 Minutes 18 Seconds Looking around my hometown of Los Angeles, my heart soars with gratitude. My home is safe, my bills are paid and I was fortunate to be able to serve my family an ample Thanksgiving meal. And yet, I am fully aware that hundreds of...


5 Ways to Improve Your Emotional and Spiritual Health

Read Time: 4 Minutes 50 Seconds Do you believe the Lord is concerned about your emotional and spiritual health? He is. He wants you to know how to improve your emotional and spiritual health to be...
I Never Thought I’ve Have to Say This: Jesus Was Not Trans

I Never Thought I’ve Have to Say This: Jesus Was Not Trans

Read Time: 3 Minutes 27 Seconds You may have heard about the controversy that erupted in Cambridge, England, this past Sunday at Trinity College. The preacher, Joshua Heath, a junior research fellow who has a Ph.D. in theology, offered a sermon in which he suggested...

Prophetic Word: Goodness Is Following You, Turn and See

Prophetic Word: Goodness Is Following You, Turn and See

Read Time: 4 Minutes 48 Seconds At a recent gathering where a person was struggling, I heard and declared by the Spirit of the Lord, “Goodness is following you; turn and see. Embrace His goodness in this moment and watch the shift!” There was an immediate shift and...

Why Becoming Like God Requires Special Effort

Why Becoming Like God Requires Special Effort

Read Time: 2 Minutes 7 Seconds We can walk with God and come into unity with Him by clothing ourselves in His nature. This will require that we restrict and control the desires of the flesh by putting our focus on obtaining the very substance and characteristics of...

3 Reasons for Hope This Advent Season

3 Reasons for Hope This Advent Season

Read Time: 3 Minutes 6 Seconds I didn’t grow up celebrating Advent. When I was little, we put up a tree, got presents and had a Christmas Eve service. It seemed to me that most grown-ups were stressed over Christmas and thankful when it was all over. It wasn’t until...

How To Be Hilariously Happy in Your Giving

How To Be Hilariously Happy in Your Giving

Read Time: 4 Minutes 17 Seconds The day after Thanksgiving is culturally called Black Friday, in the U.S. It marks the beginning of retail sales that could ensure a successful and profitable Christmas-gift-buying season. Black Friday In decades past, book-keepers...

Pin It on Pinterest