Lambda Legal, GLAD File Brief Defending University of California Nondiscrimination Policy Against Christian Legal Society Challenge

(Washington, D.C.) - March 15, 2010 – Lambda Legal and Gay & Lesbian Advocates & Defenders (GLAD) filed a friend-of-the-court brief today with the U.S. Supreme Court in support of the University of California Hastings School of Law in a case brought by the Christian Legal Society (CLS) challenging the school's nondiscrimination policy. The law school's policy requires student organizations supported by the school to agree to accept "all comers" and not to discriminate against students based on their status or beliefs. It does not prohibit student groups from excluding whomever they want, but merely limits school support to those groups that are open to all students. The National Center for Lesbian Rights and Lambda Legal Board co-chair Paul Smith of Jenner & Block represent Hastings' gay student group, as an intervenor in the case.

In 2004, Hastings denied CLS registration as an official campus organization after CLS refused to comply with the school's nondiscrimination policy. CLS said that it could not comply because it requires that those who join its group to agree not to engage in "unrepentant participation in or advocacy of a sexually immoral lifestyle" including "homosexual conduct."

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, saying that the school's written policy only limits school support to organizations that agree not to discriminate based on certain enumerated categories, including religion and sexual orientation but that the Christian Legal Society excludes members on the basis of conduct, not orientation. CLS also argued that, by not allowing it to become a supported student group, Hastings had violated CLS's rights of free speech and association under the U.S. Constitution. The District Court rejected these claims and found in Hastings' favor, as did the U.S. 9th Circuit Court of Appeals last year.

The amicus brief by Lambda Legal and GLAD explains that CLS admitted that Hastings' policy broadly prohibits supported student groups from discriminating on the basis of status or beliefs and that there is no question CLS refused to accept all students as members. The brief goes on to explain that, even were that not the case, excluding students who engage in same-sex sexual conduct does discriminate on the basis of sexual orientation. "The Supreme Court already accepted, in Lambda Legal's Lawrence v. Texas case, that treating people badly because they engage in same-sex sexual conduct obviously discriminates on the basis of sexual orientation," said Jon W. Davidson, the Legal Director of Lambda Legal.

The brief cautions that CLS' position, if adopted, could allow organizations to skirt anti-discrimination laws by claiming to exclude merely on the basis of conduct associated with a given group:

Those intent on discriminating based on a particular religion could simply exclude others who engage in religious practices core to that religion. National origin discrimination could be accomplished by simply barring those who engage in customs common to a particular country. And disability discrimination could be engaged in by those who claim they are opposed only to the "conduct" of using wheelchairs or guide dogs. This Court and others have rejected such illogical and invidious distinctions.

The brief also emphasizes that Hastings is not prohibiting CLS from meeting or communicating with other students on campus. "CLS is entitled to believe what it wants about sexual orientation and same-sex sexual conduct and to express its views to others," said Gary Buseck, Legal Director of GLAD. "It has no right, however, to government funding for its discrimination against lesbian and gay students."

Davidson added, "CLS is demanding that even though it will not agree to the same reasonable conditions required of all other student groups Hastings assists, CLS must be provided a public school's support. CLS has no right to such preferential treatment. The Constitution does not obligate the government to subsidize those who discriminate."

The 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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