Noah's Curse: How Religion Often Conflates, Status, Belief, and Conduct to Resist Antidiscrimination Norms

Abstract

In Christian Legal Society v. Martinez, the Supreme Court recently decided the challenge of a religion-based student group denied recognition by the Hastings College of Law, a state-run law school in California. The Christian Legal Society (CLS) refuses full membership and officer eligibility to "unrepentant homosexual[s]," in violation of the law school's ban on discrimination based on sexual orientation and other forms of discrimination by any program or group officially recognized and funded by the law school. CLS argued that its exclusion from state recognition and publicly funded benefits violates the First Amendment's protection of associational and religious liberty. At oral argument on April 19, 2010, Justice Sonia Sotomayor asked whether the First Amendment ever protects associations that exclude students based on their race, sex, or disability. "Not at all," replied Professor Michael McConnell for CLS. "Race, any other status basis Hastings is able to enforce." CLS, however, was only excluding unrepentant gay people based upon their conduct and, by inference from their unrepentant conduct, their beliefs, the core area protected by the First Amendment. Justice John Paul Stevens then asked, "What if the belief is that African Americans are inferior?" McConnell answered that such an organization might have that belief, but they could not then exclude students of color based on their status.