U.S. Supreme Court Upholds Law School Non-Discrimination Policy: Lambda Legal Welcomes the Decision

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"It's wrong of CLS to expect students to fund a group that wouldn't have them as a member."
June 28, 2010

"We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it."

(Los Angeles, June 28, 2010) — Lambda Legal welcomed today's U.S. Supreme Court ruling that upholds a policy at a California law school that groups receiving campus funding must accept "all comers;" that is, not discriminate on the basis of race, religion, sexual orientation or other status or belief. The Christian Legal Society (CLS) at the University of California Hastings had filed suit after the university revoked recognition because the group barred membership to "unrepentant homosexuals." While upholding the law school's policy, the Court remanded to the 9th Circuit an assertion by CLS that Hastings applied its non-discrimination policy selectively in this case.

Lambda Legal and Gay and Lesbian Advocates and Defenders (GLAD) filed a friend of the court brief in this case arguing that CLS's exclusion of students who engage in same-sex sexual activity without remorse excludes gay people by definition. CLS therefore violates Hastings Law School's requirement that officially-recognized student organizations not discriminate on the basis of sexual orientation among other grounds. The brief also argues CLS was properly denied school recognition because it admitted that Hastings denies recognized student organization status to any group that is not open to all students.

"We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs."

Registration as a student organization at Hastings gives groups the right to use Hastings' name and logo, access to a university email address, limited use of facilities, and modest university funds for travel and other expenses. CLS sued in U.S. District Court in San Francisco, arguing that, by not allowing it to become a supported student group, Hastings had violated CLS's rights of free speech, association and religious freedom under the U.S. Constitution. The group maintained it did not bar membership to gays, but rather to those who engaged in homosexual conduct. The District Court rejected these claims and found in Hastings' favor, as did the U.S. 9th Circuit Court of Appeals last year.

The Court's 5-4 majority opinion written by Justice Ruth Bader Ginsburg, cited both the brief submitted by Lambda Legal and GLAD and from its own decision in Lambda Legal's 2003 victory in Lawrence v. Texas, saying justices have traditionally declined to distinguish between status and conduct:

"To bring the RSO program within CLS's view of the Constitution's limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?"

Justice Steven's last day on the bench included a concurring opinion in this case: "Other groups may exclude or mistreat Jews, blacks, and women—or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them."

"Lambda Legal would like to send condolences to Justice Ginsburg and her family on the loss of her husband, Martin Ginsburg. And we would also like to again salute Justice Stevens on his last day on the bench," added Davidson.

Hastings' gay student group was represented by The National Center for Lesbian Rights and Lambda Legal Board co-chair Paul Smith of Jenner & Block.

The amicus brief in Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez (Case No. 08-1371) was prepared by Jon W. Davidson and Susan L. Sommer of Lambda Legal, Gary Buseck and Mary L. Bonauto of GLAD, and Clifford M. Sloan, Bradley A. Klein, Daniele M. Schiffman, and Ray D. McKenzie of the firm of Skadden, Arps, Slate, Meagher & Flom.



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Contact: Tom Warnke; 213-382-7600 ex 247;

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.