We’re only six days from the oral argument in Christian Legal Society v. Martinez, and I had to highlight my Alliance Defense Fund colleague Greg Baylor’s excellent response to a recent <a href=”http://blogs.usatoday.com/oped/2010/03/column-on-campus-tolerance-and-faith-collide.html“>USA Today column by Tom Krattenmaker. As Greg relates, Mr. Krattenmaker makes two primary points: (1) The case is hard; and (2) a compromise ruling is desirable.

As for the difficulty of the case, I happen to think it is quite easy to rule that expressive associations should have the commonsense (and historically protected) right to exclude those who don’t share the group’s beliefs and won’t abide by the group’s code of conduct. (In fact, it’s much easier to follow precedent than to reverse it.) But I hesitate to say that anything is “easy” on the eve of a Supreme Court case where the nation’s top legal minds are poised to do battle and where more than 30 separate amicus briefs are sitting on the justices’ desks.

Regarding the “compromise,” I like Greg’s points:

Mr. Krattenmaker’s second main point is that there ought to be some “middle ground.” e cites approvingly two specific examples offered by Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression. Here is the first: “The justices could rule, for instance, that the Christian student group might rightly be expected to include gay students as rank-and-file participants, but not as officers.” There are many problems with this proposed “compromise.” First, it is misleading (at best) to suggest that this case is all about the ability of “gay students” to serve as leaders and voting members of CLS. Hastings originally said that CLS could not consider religious belief or same-sex sexual conduct in choosing officers and members. In other words, it could not deny voting membership to an atheist who rejected CLS’s core religious beliefs. Hastings later said that CLS was required to admit anyone to leadership or membership. In other words, it is simply wrong to say that this case is all about “gay students.” Second, this proposed compromise is, in a very real sense, what CLS is already doing.Anyone can be a “rank-and-file participant of CLS,” without regard to their beliefs, sexual “orientation,” or sexual practices. Hastings deemed this insufficient, declaring that CLS was required also to open up voting membership and leadership to students who reject its core religious commitments. In my view, Hastings has not persuasively argued why participation is insufficient and why eligibility for voting membership and leadership is also required. Third, to the extent one modified this “compromise” to require students who reject CLS’s beliefs to be voting members (as opposed to mere rank-and-file participants), it ignores the fact that voting members choose the group’s leaders and thus have a significant role in maintaining the group’s religious character and message. Moreover, voting members (students who have voluntarily signed theCLS Statement of Faith) lead CLS Bible studies. Does it make sense to force CLS to allow individuals who reject the Bible to lead a study of it? Is this a sensible compromise?

Mr. Krattenmaker also suggests maintaining the nondiscrimination codes while refusing to enforce the codes until a real-life, aggrieved student comes forward (in most cases, the university pro-actively ejects Christian groups from campus before anyone complains that they’ve been excluded). Greg responds:

There is actual a kernel of common sense here. No actual person who rejected CLS’s religious views sought to be a leader or voting member of CLS at Hastings. If Hastings simply responded to complaints, this dispute might have never arisen. The problem, though, is that Hastings required CLS to promise in advance that it would neverconsider religious belief or immoral conduct in selecting its officers and voting members. CLS could not secure access to meeting space, funding, and communications mechanisms without making that advance promise. Hastings essentially said to CLS, “you can’t use your Statement of Faith in choosing your leaders and voting members.” Understandably, CLS could not make such a promise, and Hastings ejected it from the speech forum it set up for student groups. The O’Neil/Krattenmaker suggestion points out what is really going on in this case. Hastings is not really trying to open CLS to students who reject its religious beliefs but nonetheless desire not only to attend and participate (which CLS already allows) but to serve as leaders and voting members. There is no evidence that such a student ever existed, and it is difficult to imagine what legitimate motive such a student might have. Instead of protecting actual people from the unjust denial of some valuable benefit on an irrelevant and invidious basis, Hastings is simply trying to “send a message.” Its message is that CLS’s religious and moral beliefs are wrong. Hastings is trying to communicate its own view that same-sex sexual conduct is not immoral. Hastings wants to loudly proclaim that it disagrees with CLS.

Read the whole thing.