MUST THE CHRISTIAN LEGAL SOCIETY ADMIT ATHEISTS?

by Prof. Rick Duncan

The Feb. 2005 print edition of the ABA Journal has an interesting article on law schools that have banned the Christian Legal Society from campus because the CLS requires its members and officers to affirm certain Christian doctrines and to adhere to Biblical standards of sexual morality. Most universities require student groups to follow campus rules forbidding discrimination on the basis of race, gender, religion, and sexual orientation. Thus, when the CLS excludes an atheist or a practicing homosexual from membership or leadership, a number of universities have responded by refusing to recognize the CLS as a student organization and barring it from meeting on campus and receiving its fair share of student activity fees.

The CLS takes the position that it is unconstitutional for a university to penalize it for maintaining a Christian identity. My friend and fellow First Amendment scholar, Prof. Douglas Laycock of the University of Texas, was quoted in the ABA Journal as saying that the CLS's argument not only is a winner, but it is a "no brainer" in light of the Supreme Court's recent decision in Boy Scouts v. Dale protecting the right of expressive association. As Laycock told the ABA Journal, "I think the First Amendment clearly protects the right of a religious organization to insist that its members and officers subscribe to its religious teachings. If it can't do that, sooner or later it will cease to be a religious organization."

What about it? Should the CLS be permitted to exclude, say, an atheist from membership or a leadership position in the group? If every other student group is required to refrain from discriminating on the basis of religion, why shouldn't religious groups be held to the same standard?

One answer is to argue that the CLS is not being treated the same as other student groups. Most student groups are allowed to exclude students who do not share the groups' philosophical or expressive commitments. For example, a student chapter of the NAACP may exclude a racist from membership in the group, because he doesn't subscribe to the organization's positions on racial equality and tolerance; a student chapter of the ACLU may exclude from membership students who don't subscribe to its free speech or church-state positions; and a GLBT group may exclude students who oppose same-sex marriage.

It is just common sense that a group that has been organized around certain philosophical or expressive purposes should be allowed to exclude from membership students who don't support those purposes. If the CLS is to be a Christian organization, it must be allowed to protect its religious identity by insisting that members subscribe to the Christian teachings it wishes to promote. The NAACP should not be forced to allow racists to be voting members or to serve as officers and leaders. The CLS should have (and under the First Amendment does have) the same right to exclude from membership and leadership applicants whose beliefs and conduct are inconsistent with the ideas for which the CLS stands.

This issue is a "no brainer." State universities are forbidden by the First Amendment from penalizing the expressive associational liberty of the CLS.

Editors Note: Rick Duncan teaches Constitutional Law and Religion and the Law at the University of Nebraska College of Law. This post was originally published on Prof. Duncan's weblog, Red State Lawblog. It is reproduced here by the author's permission. The copyright license of Jeremy Richey's Blawg does not apply to this post.