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Home arrow Blog arrow Q & A with BJC's Holly Hollman on Christian Legal Society v. Martinez brief
Q & A with BJC's Holly Hollman on Christian Legal Society v. Martinez brief E-mail
Written by Don Byrd   
Monday, 15 March 2010

The Baptist Joint Committee filed a brief with the Supreme Court in the case of Christian Legal Society v. Martinez, which is scheduled to be heard next month. They urge the court to take a strong stand for the autonomy of religious organizations, but also to uphold the principle of church-state separation when it comes to funding. (Read the brief here.)

I had the opportunity to interview BJC General Counsel Holly Hollman about the filing and the important factors in this case, starting with the very basics - what is it about?

For readers who haven’t been following this case: in a nutshell, what is Christian Legal Society v. Martinez all about?
The University of California’s Hastings College of the Law grants recognition to a wide variety of student clubs, providing a forum and attendant benefits that allows them to meet on campus outside of class time to pursue various interests. Hastings has a broad non-discrimination policy and wants to ensure that all its students have an equal opportunity to benefit from the school’s programs and activities, regardless of status, such as race, religion, national origin, sex or sexual orientation. Hastings denied recognition to the student chapter of the Christian Legal Society (CLS) because CLS requires all members to sign a faith statement and be subject to its standards for moral conduct. As a religious association of members who share a common faith and meet for Bible study and prayer, CLS excludes those who don’t accept their religious criteria—that is, they “discriminate” based on religion. The case presents a conflict between a public university’s interest in nondiscrimination and CLS’s interest in expressive association.

The BJC filed a brief with the U.S. Supreme Court in which you agree with CLS that the Hastings College of the Law shouldn’t be able to dictate its membership policies. Is it a tough call?
Religious autonomy (allowing a religious group to organize around particular religious principles and practices) is central to religious liberty. Nondiscrimination (treating individuals equally without regard to status) is also an important interest. As in all religious liberty cases, the context is very important. We support forums for student clubs on public school and university campuses because they are good for religious liberty. Generally, such forums allow student-initiated religious activity, without any threat of school sponsorship. Here, what Hastings gives with one hand—a forum for student groups to pursue common interests— it then takes away with the other, requiring student groups to admit all students (even those who seek to change the group’s message). In some ways, this case presents the far ends of the spectrum. CLS has very strict membership criteria. It is not open to all Christians, only those who agree and signify agreement with the CLS statement and moral rules. At the other end of the spectrum, Hastings has a very broad view of non-discrimination. It not only prohibits discrimination based on legally protected categories of students that may have traditionally been excluded from opportunities, but it also requires each club to have an “open membership” policy. While the university can promote nondiscrimination in many ways, it should not be able to require CLS to change its message in order to participate in a student forum.

I know the BJC has taken a strong stand against religious discrimination with public resources when it comes to hiring (examples include funding the Head Start program and, more generally, the Faith-based Initiatives). Here, though, you say the University's interest in banning discrimination doesn't justify limiting a religious organization's right to control their membership. What's the difference?
Good question. Two concerns are raised in the area of social services that do not arise here. First, while the Constitution prohibits government funding of religion, religious entities may receive government money where the money is designated for constitutional purposes and safeguards are in place. Second, equal opportunity in employment, especially in tax-funded job positions, is an important federal policy. The BJC’s commitment to avoiding government promotion of religion and government funding of religious discrimination lead us to oppose exemptions for religious hiring in government-funded jobs. Given the government’s purpose in the social services context – to pay for a secular social service – it is hard to justify denying a job applicant the opportunity to work in such a job based on religion. In the CLS case, however, or in other cases where the government is opening a forum for religious and secular groups to promote their messages without government sponsorship or entanglement, the government does not have a similar interest and the religious groups should be able to define themselves, without government interference.

You sided with CLS in the membership dispute, and yet you filed on behalf of neither party. Why?
The clearest religious liberty interest at stake in this case is in protecting a religious organization’s ability to organize around religious principles or practices with “equal access” to the forum. Despite our Baptist aversion to signing “faith statements,” our commitment to religious freedom leads us to defend CLS’s right to set its membership requirements and define its own message. Our position is consistent with the BJC’s long-standing commitment to the principle of “equal access” (treating religious groups like their secular counterparts in a forum designed for freedom of association and speech), but it also pushes against any state funding or sponsorship of religion. It is imperative that the Court sees the distinction between equal access to a speech forum and other circumstances that give rise to Establishment Clause concerns about advancing religion. We believe equal access for religious groups in a student speech forum supports religious liberty without creating the threat of government-sponsored religion. Unfortunately, this case has a problematic element that complicates it. Hastings also gives student groups the opportunity to obtain grants of student fees, which raises concerns that are distinct from a typical “equal access” case. It was important to the BJC to address that point.

It sounds like the funding element raises concerns weighing against CLS.
It does, but that does not mean that the Hastings policy is constitutionally sound. Hastings itself created the problem when it linked access to the forum (expressly disclaiming sponsorship of student groups) with access to student fees and other university funds. By doing so, Hastings altered the forum and raised concerns about a public university providing funding for Christian fellowship and Bible study. While the constitutionality of the funding is not squarely before the Court, we urge the Court to avoid ruling in any way that would damage the Establishment Clause’s ban on funding religion. CLS is not providing a secular social service and should not receive government funds for its activities.

Hasn’t the Supreme Court previously allowed some level of funding to student groups?
In Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995), the Court approved reimbursement of printing costs for student publications, even if those publications espoused a religious viewpoint. The Court held that such reimbursements were constitutional because they were payments to a third party, flowing from the University to the printing vendors, with no monies ever passing through the student organizations and authorized only upon satisfaction of carefully crafted criteria. The Court found that these indirect payments were practically the same as the in-kind benefits—such as use of meeting space and the accompanying facility maintenance costs—that all student organizations receive as benefits incidental to a limited public forum and thus, would not create an Establishment Clause violation. The funding element in this case is not so carefully structured and provides direct payments that threaten a level of “sponsorship” of the student clubs, including religious clubs.

In terms of its potential positive or negative impact for religious freedom, what are you most hopeful for, and most worried about in the Court's ultimate ruling in this case?
The Court should reiterate the important religious liberty distinction they have recognized in the past -- “the crucial distinction between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” If the Court sticks to the context—religious student groups organizing around common principles, participating in a forum for student association and speech—it could provide a limited and clarifying decision that protects religious autonomy and expressive association. We hope that the Court will not engage in the kind of activism that many of them have disavowed by using this case to reach other contexts where the government has a stronger interest in nondiscrimination.

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