Should a university recognize and allow funding for a student group that requires its leaders to abide by a strict personal code that includes limits on sexual orientation?  

Tomorrow – April 19 - the U.S. Supreme Court is scheduled to hear oral arguments on precisely that issue with respect to CLS v. Martinez.  This is the background to the case.  The University of California Hastings College of the Law is a top-ranked American law school.  The Christian Legal Society (CLS) is an organization of Christian judges, lawyers and others with more than 150 law school chapters.  In the 2004-2005 academic year, the Hastings chapter of CLS applied for recognition as a student club and was rejected.  The CLS sued Hastings, claiming that by Hastings’ denial of recognition the school violated the CLS’ “expressive association, free speech, free exercise, and equal protection rights” under the American Constitution.  

The school’s position was based primarily on two documents: the CLS Statement of Faith, and Hastings’ non-discrimination policy.  

All officers and voting members of CLS must sign the national CLS Statement of Faith, which provides:

Trusting in Jesus Christ as my Savior, I believe in:One God, eternally existent in three persons, Father, Son and Holy Spirit.God, the Father Almighty, Maker of heaven and earth.The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.The presence and power of the Holy Spirit in the work of regeneration.The Bible as the inspired Word of God.  
On the issue of sexual orientation, for greater clarity the national CLS passed a resolution in 2004 expressly prohibiting adultery and “homosexual conduct”. In contrast, Hastings’ non-discrimination policy provides as follows:   
 
 
 

The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admissions, access and treatment in Hastings-sponsored programs and activities.  

The basic legal issue in this case is whether the CLS is suffering religious discrimination (as the CLS claims) or whether it is seeking special permission to violate the non-discrimination policy (as Hastings claims). 

Although much about this case is specific to the U.S., many of the arguments apply in the Canadian context, specifically to the debate involving pro-life groups on campus.  As a result, even though a decision of the U.S. Supreme Court will not bind universities or student societies when dealing with such circumstances, it will highlight the unique tensions at play and may encourage a Canadian court to advance in a particular direction if a similar case comes before it. 

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