ColumnistsThe Straight Line

Gay Rights and the Courts

On June 28 the U.S. Supreme Court of the United States took “a huge step forward for fundamental fairness and equal treatment,” according to the Reverend Barry Lynn of the group Americans United for Separation of Church and State. Lynn was referring to the decision handed down in the case of Christian Legal Society v. Martinez (08-371).

The Court ruled that Hastings College of Law had no obligation to recognize and fund the Christian Legal Society on its campus. Hastings denied the organization’s request because the society requires that all voting members sign a statement of faith. They regard “unrepentant participation in or advocacy of a sexually immoral lifestyle” as a violation of said statement. Hastings contends that their policy prohibits recognition of any group that excludes people due to religious beliefs or sexual orientation.

Justice Ruth Bader Ginsburg wrote the majority opinion, arguing: “In requiring CLS —  in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress Constitutional limitations … CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The Court’s ruling was a 5-4 split, with Justice Samuel Alito writing the dissenting opinion. Alito’s dissent focused on freedom of speech: “Our proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”

While I agree with Justice Alito, that the freedom of expression, even the expression of “the thought we hate,” is of paramount importance in a free society, I don’t understand this argument. Conservatives always fall back on their right to hate gays and their freedom of speech and religion in case like CLS’. The problem, however, is that these arguments don’t apply. Neither Hastings nor the court said the Christian Legal Society can’t exist, nor were members banned from campus or prevented from expressing their beliefs. They were denied official recognition as a campus organization and prohibited from obtaining funding as such.

In none of these cases are religious institutions or organizations told that they can’t believe what they want or that they can’t exclude people for whatever ridiculous reason they choose. What they are told is that there are consequences for those decisions.

The question that now arises is this: How will this precedent impact other organizations that receive benefits from government agencies while maintaining discriminatory practices? Specifically the Boy Scouts of America. The Court has ruled (and rightly so) that as a private organization, the BSA can exclude homosexuals from membership. However, BSA also receives support from government, even though it violates anti-discrimination policy.

On its website, the Utah Department of Motor Vehicles offers a special license plate “to generate funds to be used for the benefit of programs of the Boy Scouts of America in the state of Utah.” In order to qualify for this plate, a $25 minimum contribution is collected (by the DMV) at the time of issue and every year thereafter at renewal. It seems to me that as a discriminatory private organization, the BSA should not receive public assistance.

We’re starting to see the tide turn. The courts are finally taking the stand that all Americans are deserving of equal protection under the law, and that sexual identity and orientation are not valid reasons to ignore those protections.

Currently, there are a number of other cases of interest working their way through the maze of the courts. One of particular interest is the battle over California’s Proposition 8. Arguments have already concluded in the Federal Court trial, and a decision is expected sometime this summer. Regardless of what that decision will be, it is clear that this case will be appealed all the way to the Supreme Court. Will the court keep with the precedent it set in Christian Legal Society v. Martinez and overturn the ban on same-sex marriage in California? Only time will tell, but I will say this: recent government actions like this one leave me with hope that the rights of all will soon be protected at the highest level.

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