Phi Beta Cons

Free Association and the Ninth Circuit

Last month I wrote about disturbing developments in the long-running battle for free association on campus. California federal district courts, applying Ninth Circuit case law developed in the high-school context, were holding that Christian groups could not, in fact, reserve leadership and/or voting membership for those who believed in the group’s mission and purpose.  

Last Tuesday, the Ninth Circuit heard arguments in Christian Legal Society v. Kane, where the primary issue at oral argument was whether the panel was bound by the Ninth Circuit’s high-school ruling and must also limit the free-association rights of university students. This week, the answer came with shocking speed: neither high-school nor college religious groups can impose religious eligibility requirements on members or leaders.  

From a common-sense standpoint, this is absurd. Imagine telling a Baptist church that its search for a new pastor had to include equal consideration of Buddhist or Hindu candidates. Imagine telling a synagogue that they were engaged in unlawful “discrimination” if they categorically refused to permit imams from functioning as rabbis. How can student guarantee that they can maintain their distinctive voice if each group essentially has to be open to all students, regardless of those students’ beliefs or intentions?

From a legal standpoint, the Ninth Circuit is now decisively out of step with at least two other circuits, the Second (in the high-school context) and Seventh (in college). The Eleventh Circuit is also set to rule in a substantially similar case. In short, the issue is now teed up for the Supreme Court, and a cert petition (in the high-school case) has already been filed.  

The next few months will be crucial for religious student groups in Ninth Circuit and elsewhere.  

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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