Phi Beta Cons

A Judge Misses Key Point

A federal judge ruled Tuesday against the Christian Legal Society, a student group denied recognition by the University of California’s Hastings School of Law because it bars membership to students who engage in “unrepentant homosexual conduct”. As reported in Inside Higher Education, Judge Jeffrey S. White, a Bush appointee, cited the recent unanimous Supreme Court decision in Rumsfeld v. Forum for Academic and Institutional Rights, arguing that the Hastings requirement against anti-gay discrimination was “directed at conduct not speech”.
Judge White has evidently missed a critical distinction in conflating these cases. The quid pro quo of the Solomon Amendment was that if a university or law school accepted federal money it had also to allow military recruiters campus access. The feds were not, however, insisting that these recruiters serve on university or law school boards–that is to say, take part in their internal governance. Had they done so, every aspect of institutional policy would have become subject to federal influence, including institutional speech. Against such an imposition the Forum law schools would have had a powerful, not risible, First Amendment defense. On the other hand, opening membership in a Christian Legal Society to those morally at odds with its principles does subvert its governance and, hence, its ability to hold and propagate its opinions. No organization representing minority views can remain safe under such a regime.
It’s hard to imagine this decision being upheld should it reach the high court.

Stephen H. Balch was the founding president of the National Association of Scholars. In 2007 he received the National Humanities Medal from President George W. Bush.

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