Back in 1995, the Supreme Court ruled in favor of some conservative Christian students at the University of Virginia who sought money from a student activity fund to publish a Christian magazine.
The decision in Rosenberger v. University of Virginia was a close 5-4, and the right-wing groups that backed the students were full of glee. They had finally succeeded in putting a few chinks in the wall of separation between church and state – at Thomas Jefferson's university, no less.
I wrote about the case at the time and remember thinking, "The students got their money – what else might they get?" I don't claim to be psychic, but it turns out I was right. Recently, a federal appeals court ruled that Hastings College of Law in San Francisco has the right to impose non-discrimination policies on a Christian group that sought formal recognition – and a share of activity fees – from the law school.
This means the student chapter of the Christian Legal Society must admit as members non-Christians and gay students. The ruling in Christian Legal Society v. Kane by the 9th U.S. Circuit Court of Appeals was just one paragraph long and refers to an earlier ruling in a similar case from a public high school.
A lot of public colleges rely on student fees to fund activities. When I was in college, our school newspaper was funded this way. I edited the paper and welcomed anyone who wanted to work there. It would have been inappropriate for me to tell some students they couldn't work at the paper – even though their money helped fund the publication – because they were Mormon, gay, black, etc.
Jeremy Tedesco, an attorney with the Alliance Defense Fund (ADF), carped that rulings like this "require religious organizations to include people in their groups who disagree with what the religious groups believe. That's a violation of the First Amendment, free speech and freedom of religion."
Wrong as usual, ADF. Had this group been privately funded, it could discriminate all it wanted. But this organization sought funds drawn from a large pool of people, fees that are usually mandatory. In that respect, the money is akin to taxation. The government entity collecting and dispersing the funds has the right – and some might even say an obligation – to ensure that none of the money ends up subsidizing discrimination. (AU reiterated these points in a friend-of-the-court brief we filed in this case.)
It's also worth pointing that all groups are being treated equally. I don't know if there is "Secular Humanists of Hastings Law School" group, but if there is, and if it is receiving activity fees, it must allow Christians and other religious students to join. And that's as it should be.
The Christian Legal Society branch at Hastings required adherence to a statement of faith and banned any members who engaged in "unrepentant homosexual conduct." It's simply not right to require someone to fund an organization that won't even let them in the door.
This should be a lesson to the Religious Right about the dangers of unintended consequences, as well as a reminder – as if another one were needed – that access to public funds brings imposition of significant regulations too.