"Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?" asked Justice Sonia Sotomayor.It seems to me that they argument for the Christian group is infiltration. What if subversives join the group with intent to undermine? They are ignoring the fact that the group still wants to discriminate, just not "status," only beliefs, but if you consider their argument, it is wrong to discriminate against African-Americans, but okay to discriminate against homosexuals, because that is their religious beliefs.
No, McConnell said. "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis, Hastings is able to enforce."
"What if the belief is that African Americans are inferior?" Justice John Paul Stevens said.
"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.
Garre, who was the solicitor general for the Bush administration, pointed out that the Supreme Court ruled earlier that Bob Jones University in South Carolina could not ban students who believed in interracial dating and still receive federal funds. "Here we have a group that wants to exclude members on the basis of sexual orientation," he said.
Chief Justice John Roberts said that was only Garre's interpretation. "It's a religious-oriented group that wants to exclude people who do not subscribe to their religious beliefs," he said.
Justice Samuel Alito questioned whether Hastings has allowed other groups to exist on campus that did not allow all comers to join. But Garre pointed out that the Christian Legal Society had stipulated in the lower courts that Hastings did have an all-comers policy, and that registered student organizations must accept all law students as voting members regardless of status or belief.
If they didn't believe it was true, "they shouldn't have stipulated" to that fact, Garre said.
Alito asked Garre what the practical effects of Hastings' policy will be for groups. Say "there is a small Muslim group; it has 10 students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say First Amendment allows that?" Alito said.
Garre said that has never happened to a group.
"CLS obviously thinks this is a real threat," Alito said.
"Now, what do you propose that they do?"
Garre said the members who are now outnumbered can leave the group.
"If hostile members take over, former members of CLS can form CLS 2?" Alito asked skeptically.
The Christian group could require knowledge of the Bible to join, Garre said. "There is a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit," he said.
I think the infiltration argument is a real concern, but not one that should be upheld by the courts, because infiltration could occur regardless of if the Christian organization, or any organization for that matter, gain recognition from the school and receive funding and benefits. Secret homosexuals could try and enter the group and work from within to bring the group down, or with the Muslim argument, the group could become outnumbered by people of a different group, and instead of arguing that people who hate Islam join, what if another Islamic sect joins that is contrary to the founder's vision?
I disagree with Justice Roberts, who seems to take the position that religion candiscriminate legally. I believe Sotomayor's and Stevens' comments to be the stronger argument, with Garre trying to differentiate between race and sexual orientation. If the group wants funding, they should have a real open policy. One would think they would want other people to join in an attempt to convert.