Not surprisingly, the New York Times editorial on todays hot Supreme Court ticket gets it wrong, starting with the facts. But the Washington Post gets it right, influenced, I assume, more by Jonathan Turley’s analysis that by Newt Gingrich’s epithet-laden call to arms.

The New York Times is factually wrong, as I understand it, that the Christian Legal Society Hastings Chapter “bars non-Christian and gay students.” CLS allows all students to attend meetings, but CLS bylaws barred non-Christians, gays and non-celibate heterosexual students from serving as officers or voting members. Even on its sexual standards, it recognizes human frailty: students, gay or straight, who lapse into unchastity are allowed as members and officers if they’re repentant. It’s those who reject the virtue of Christian chastity who are excluded.

Moreover, religions typically are exclusive. The Hastings policy in effect prefers non-exclusive religions (e.g., Unitarian Universalism – though I recall a debate even there about whether a pagan polytheist can style himself Unitarian – the “belief in, at most, one God”) over typical religions, despite the Constitutional requirement of neutrality of government between religions.

This is the slippery constitutional slope down which government starts the slide when it exalts faddish and undiscerning equality (by undiscerning, I mean disregarding relevant distinctions; I’m not intending to promote invidious discrimination) over explicit mandates of the Bill of Rights.

I believe that the government itself should not discriminate on irrelevant bases, and that sexual orientation, for instance, is generally irrelevant. But it is a much different matter, it seems to me, for government to fund things with tax dollars but require as a condition of funding that recipients not discriminate, however nonviolently, based on matters that are relevant within the logic of the recipient’s associative purposes. The controlling principal in funding, I believe and predict, is that of the Supreme Court’s “Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.” That quote, from Jonathan Turley’s discerning column, gets to the heart of the matter.

By the way, this dispute reminds me of a maxim that I believe I coined a few decades ago: In a regime of strict separation of Church and State, when government gets bigger, the Church is forced to get smaller. That’s why as a life-long Churchman (who has, however, switched Churches) I’m biased against big government.

Three additional matters that I don’t think qualify as an update (I simply failed to mention them although I intended to):

1. The possibility that making sexual orientation a protected class would eventually lead to denial of tax exemption to religions that do not countenance unrepentant homosexuality has long been a powerful argument to me, based on the Bob Jones University tax exemption decision (mentioned in Jonathan Turley’s column), and Turley recognizes the power of that argument in his final paragraph or two or his column.
2. Hastings law school will no doubt attempt to rely on the case Employment Division v. Smith, which abandoned a precedent of moderate duration in favor of the rule that laws may legitimately impinge on the free exercise of religion provided they are neutral laws of general application – a surprisingly difficult test to meet (some powerful group generally lobbies for an exemption, which prevents the law being “of general application”). Hastings will argue that its nondiscrimination policy applies to every student group seeking funding. I still think the “fund them all or fund none” principle will prevail. Denial of funding because of a belief nonviolently applied is much different than generally banning a particular behavior regardless of the motivation.
3. For almost 25 years, I was a member of the Christian Legal Society. I stopped renewing my membership finally when I realized that CLS was pervasively Protestant. Although they accept as members Orthodox and Catholics who can subscribe their doctrinal beliefs, as could I, I simply was not being “edified” by their distinctive “take” on things.