Supreme Court: Public schools can deny funding to Christian student groups that bar gays

The ruling’s not as clear-cut as you might think. Strictly speaking, it doesn’t say schools can deny funding to student groups that discriminate against gays. What it says is that a school can set an “all-comers” policy that requires groups to admit literally anyone who wants to join; if your group refuses admittance to someone for any reason, then you don’t get any funds. See the difference? The “no discriminating against gays” rule would violate the First Amendment because it imposes a certain viewpoint as a condition for public funds. The “no discriminating against anyone” rule is, at least on its face, neutral.

Just one or two problems with that. According to Alito’s dissent, the school (Hastings) did originally try to justify its policy in terms of a “no discriminating against gays” rule. Only as the case progressed and they realized that that was a sure loser in court did they switch to the “no discriminating against anyone” policy. The other obvious problem? If, as a condition of public funding, you can’t refuse to admit anyone, what happens if the campus Democrats decide to join the College Republicans en masse and take it over? The majority politely refuses to address that hypothetical, but Alito has questions. From page 35 of his dissent:

One final aspect of the Court’s decision warrants comment. In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its mes-sage, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” Ante, at 27. With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague…

The possibility of such takeovers, however, is by no means the most important effect of the Court’s holding. There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization.

In other words, even the “no discriminating against anyone” rule isn’t absolute — in which case, why should any group that’s deeply devoted to a particular point of view be forced to admit people who disagree with that viewpoint?

But of course, we’re not talking about just any group here. Alito considers the “no discriminating against gays, specifically” rule too, and notes the key distinction between religious groups and most other types of student groups. For the religious group, moral disapproval of certain behaviors is baked in the cake. A “Students Against Carbon Emissions” group, say, can express its point of view perfectly well without discriminating on the basis of race, religion, orientation, etc., but it’s a tad more complicated for the devout Christian (or Muslim) group. Page 22 of the dissent:

It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Dale, 530 U. S., at 648. Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion because the presence of members with diverse religious beliefs would have no effect on the group’s ability to express its views. But for religious groups, the situation is very different. This point was put well by a coalition of Muslim, Christian, Jewish, and Sikh groups: “Of course there is a strong interest in prohibiting religious discrimination where religion is irrelevant. But it is fundamentally confused to apply a rule against religious discrimination to a religious association.” Brief for American Islamic Congress et al. as Amici Curiae 3.

Exit question: Under Alito’s framework, would it be okay for a school to deny funding to a student group that espouses racial supremacism of one kind or another? If refusing membership on the basis of race is part of their core belief system, then presumably it’d be a free-speech violation to make them do otherwise. And a follow-up question: What if a gay but devoutly Christian student wanted to join the Christian group in this case? Assume that he agreed with their moral code that homosexuality is immoral, that it shouldn’t be practiced, etc. Is it okay to deny him membership, or does the fact that he technically doesn’t undermine their viewpoint mean the “all-comers” policy should apply there?