Laura Calvo
Portland OR

The Supreme Court of the United States (SCOTUS) issued a 5 to 4 ruling upholding Hastings College’s non-discrimination policy. The ruling in the case, Christian Legal Society v. Martinez (CLS V. Martinez), may well have been off the radar for many. However,the ruling may well be the crystal ball for all. No one knows for sure the full future implications for sure, but both sides of the issue have been watching from the edge of their seats in anticipation.

The National Center of Lesbian Rights (NCLR) issued the following statement:

Today, in a 5-4 decision authored by Justice Ruth Bader Ginsburg, the United States Supreme Court rejected a challenge to the University of California Hastings College of the Law’s policy of requiring all funded student groups to be open to all students. The policy was challenged by the Christian Legal Society (CLS), which argued that the policy violated its right to freedom of association. In Christian Legal Society v. Martinez, the Court held:

“In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS . . . seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The National Center for Lesbian Rights (NCLR) and Paul Smith of Jenner & Block LLP represent Outlaw, the lesbian, gay, bisexual, and transgender student group which intervened to defend Hastings’ non-discrimination policy.

The Court affirmed that the First Amendment does not require public universities to subsidize discrimination: “The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

“Today’s decision affirmed the longstanding doctrine that university non-discrimination policies do not violate free speech when applied in a consistent and even-handed way,” said NCLR Senior Attorney Christopher Stoll. “The Court rejected the dangerous argument that anti-gay groups must be given a special exemption from non-discrimination policies.”

While SCOTUS just ruled on CLS v. Martinez, the ruling comes on the fresh heels, as fresh as of 5 days ago, of a recent federal court jury verdict in Philadelphia regarding the Cradle of Liberty Council of the Boy Scouts versus the City of Philadelphia (AKA The City of Brotherly Love) . Cradles of liberty and cities of brotherly love seem to have clashed in what can only be related to as a boy scout version of Don’t Ask-Don’t Tell complete with a Dan Choi like 18 year old gay Eagle Scout coming out of the closet on television. The gay Eagle Scout had his wings summarily clipped. Ironically the Supreme Court ruled in 2002 that organizations like the Boy Scouts may freely limit (legally discriminate against gays) membership, thereby creating a lawful ban on gays serving in the Boy Scouts. The Cradle of Liberty Boy Scout Council at odds with their national charter and Philly’s non-discrimination policy came to adopt an unofficial Don’t Ask- Don’t Tell like policy. However, the city of Philadelphia ruled that the DADT like policy did not satisfy the city’s non-discrimination policy.

In that case,  the city had been leasing a city owned building to the boy scouts for $1 per year since 1928 (see picture to see what $1 per year gets the boy scouts in Philly). When the city adopted its non-discrimination policy, the boy scouts ban on gay scouts and leaders was immediately at odds with the city’s non-discrimination policy. Since the boy scouts held a long standing discriminatory policy against gay scouts, the city could no longer subsidize any organization which did not have an appropriate non-discrimination policy. The city asked the boy scouts to pay the fair market value rent of $200,000 per year rent for the building or vacate the premise if they did not adopt an appropriate non-discrimination policy. The boy scouts sued the city and won in a jury trial held in federal court just 5 days ago. (See Fox News Story) The boy scouts are now asking for $700,000 in legal fees and get to stay in the city owned building for $1 per year. Looks like the outcome of that trial, just 5 days ago,  flies directly in the face of the CLS v.Martinez ruling by SCOTUS. It will be interesting to see if the Cradle of Freedom Boy Scout Council adopt a lawful non-discrimination policy so they can continue to benefit from the $200,000 per year tax payer subsidy or move out and pay fair market rent rent like any other “no gays allowed” exclusive private organization.  The SCOTUS decision, if applied, says they can still exclude gays, but enjoys no constitutional right to state subvention of its selectivity.

When considering the tired and offensive anti-gay paradigm that gay rights are special rights, the SCOTUS ruling hearkens both a bright line and an irony that can not be overstated.

Quoted directly from the ruling:

“CLS seeks special dispensation from an across the-board open-access requirement designed to further the reasonable educational purposes underpinning the school’s student-organization program.”

“CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy”

While the SCOTUS only ruled on the CLS v. Martinez case, it will be interesting to see the legal maneuvering in the Philadelphia case now that the legal landscape has been freshly trimmed and mowed.

The ultimate arbitrators of the law of the land, the U.S. Supreme Court, have signaled that groups of people seeking special exceptions from laws which bar discrimination of gays are seeking special rights. All this time we’ve been told that gays are the ones who are seeking special rights.

The decision may well restore a bit of faith in the United States Bill of Rights and offer a glimpse of hope for the the future. At the same time, the 5 to 4 decision sharply points to extreme importance of a President’s privilege to appoint the justices when vacancies occur. The eagerly watched federal trial of Prop 8 has come to a close in the last week of June too. As we wait again on the edge of our seats for the court’s decision we all know it will be appealed. At the same time, today we see the beginning of Elena Kagan’s senate confirmation hearing as a Supreme Court Justice. Again on the edge of seats, the question is will Kagan maintain the 5 to 4 majority? Considering Justice Sotomayor appears to be comfortably joining the 5 to 4 majority on this case, the nomination of Kagan seems another hopeful sign, at least on this front.

And while we ponder the Kagan’s senate confirmation hearing which started on the same day the SCOTUS ruled on CLS v. Martinez there seems to be another quirky if not wholly ironic twist.

It is widely anticipated that Kagan will get grilled about upholding and enforcing Harvard University’s 1979 non-discrimination policy which barred any employer who discriminated against gays from recruiting on the campus. In 2003 Kagan refused to allow military recruiters on campus due to the discriminatory military prohibition of gays in the military.

The SCOTUS also ruled on another gay rights related case this week. The case of Doe v. Reed was decided by an 8 to 1 vote with the Chief Justice issuing the opinion of the court. As many will recall, we saw Washington state’s Referendum 71 uphold it’s domestic partnership law at the the ballot box at the same time we saw Maine’s Question 1 pass at the polls on the other side of the country taking away the freedom to marry in Maine. The Washington referendum was put on the ballot by citizen petition. The No on 71 proponents gathered over 137,000 petition signatures to try to overturn Washington’s domestic partnership law. The Yes on 71 campaign filed a public records request with the Washington Secretary of State to make public the names of all 137,000+ persons who signed the petition putting the referendum on the ballot. As one would expect the Yes on 71 campaign filed suit and won an injunction to prevent releasing the names on the petition. The case was heard by SCOTUS and the 8 to 1 ruling allows the release of the names of the people who signed the anti gay petition which would have repealed the state’s domestic partnership law.

It would certainly be interesting to go back to 2004 and publish the names and addresses of some of the anti gay initiative petitions filed in Oregon over the years.

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