RELIGIOUS FREE EXPRESSION VERSUS NON-DISCRIMINATION: MY FIRST-HAND EXPERIENCE WITH A SUBJECT THAT LANDED IN THE HIGH COURT
By the time that a case arrives for oral argument before the United States Supreme Court the passions that propelled the case to the High Court in the first place can feel remote, or even forgotten. I was reminded of that as I listened to some of this year’s Peter Jennings Project Fellows dispassionately dissect and analyze the decision in Christian Legal Society v. Martinez. I know firsthand how divisive the underlying issues were in this case and the damage caused to several public university law schools. One of those schools was the one I attended. It was no surprise to me when the Justices agreed to hear the case in 2009. This is a difficult issue.
Four years earlier, in early 2005, I received a call from Nancy Rogers, the dean of my law school, The Moritz College of Law at Ohio State University. She had an unusual favor to ask, she said, because she had encountered an unusual problem. For nearly twenty years, OSU had maintained a policy of non-discrimination on the basis of sexual orientation. All student organizations, to be officially registered and recognized, had to adhere to that policy. In 2003, however, the local chapter of Christian Legal Society or CLS, a national religious law student organization (the same one involved in the Martinez case), challenged the policy by changing its by-laws to prohibit gay students and those who engaged in premarital sex from becoming officers or full voting members. To be exact, the new by-laws stated that “officers must abstain from ‘acts of the sinful nature’, including fornication, adultery and homosexual conduct.”
In a very large law school that action might have gone unnoticed, but the college at OSU is a close-knit group of students. Another student organization known as the Outlaws filed a complaint with Dean Rogers, and soon the issue became a full-blown conflict, dividing not only the students, but faculty members as well. The Outlaws argued that if the school continued to recognize CLS and provide it with activity fees then it was indirectly participating in discrimination against gay students, in direct violation of the school’s own policy of non-discrimination policy. Members of the CLS argued that that if the school denied them recognition and fees then it would be in violation of the First Amendment’s protection of the free exercise of religion.
Things only got worse in the fall of 2004, when the University, in response to a federal lawsuit filed by the CLS, settled the suit, (some said it “caved”), by giving groups an exemption to the non-discrimination policy if they were formed to promote “sincerely held religious beliefs.”
By the time Dean Rogers called me, in January of 2005, the issue had done great damage to the morale of the school. She asked that I try to find a way to engage law students in something that seemed impossible: a reasoned discussion of the issues. On April 7, 2005, that’s exactly what we did. In an attempt to include as many students possible, we conducted the discussion in a large television studio and aired the conversation on WOSU television. We included students, faculty members, religious leaders and community lawyers. The conflict over the issues didn’t end that day, but some of the heat and irrationality dissipated.
I wondered at the time if the Supreme Court would some day weigh in on this issue. Although Ohio State University shied away from litigation, the CLS had challenged policies at several public university law schools, including Hastings. I hoped that one case would wind its way up to the nation’s top court. And last summer, the Hastings case did. After my experience at Ohio State, it didn’t surprise me that the Justices were divided five to four on the issue. It is a tough one. Still, I think the decision in favor of the universities’ non-discrimination policies was wise. In a community the size of Ohio State, with such a variety of ethnic backgrounds and religious beliefs, treating every organization in the same manner seems essential. This policy doesn’t prevent members of groups like the CLS from practicing their religion or from associating with those with similar beliefs; they simply can’t rely on university support.
I am relieved the High Court has finally put this issue to rest, but I am also glad that the law school administration didn’t sit back and wait for it. In this case, “mediation” was a good, stop-gap measure that kept the conflict from causing long term, perhaps, irreparable damage to an educational community.