'Cornell Daily Sun' Explores Important Freedom of Association Issue, Previews Upcoming Supreme Court Decision in 'Martinez'

An article in yesterday's Cornell Daily Sun, a student newspaper at Cornell University, discusses the conflict between student organizations' freedom of association and their schools' nondiscrimination policies that has been at issue on many college campuses in recent years. Sun reporter Dani Neuharth-Keusch discusses the issue as it relates to an episode right on Cornell's campus last year as well as the Supreme Court's upcoming decision in Christian Legal Society v. Martinez, for which FIRE will be submitting an amicus curiae (friend of the court) brief.

We're pleased to see the Sun pay such close attention to Martinez and the important questions it raises about Cornell's own campus controversy. However, it's important to note at the outset that the article mischaracterizes Martinez in one crucial respect. Summarizing the Martinez case, Neuharth-Keusch writes:

The Supreme Court agreed on Dec. 7 to hear Christian Legal Society (CLS) v. Martinez, a case that will decide whether a public law school may deny funding to a faith-based organization that shapes its membership around a set of core religious beliefs.

Several years ago CLS issued a statement that it would no longer accept gay or lesbian members, citing a disagreement with the group's Statement of Faith. UC Hastings College of the Law revoked the organization's official student group status - meaning the group would receive no university money, could no longer reserve rooms for meetings and could not advertise on the school website — to uphold the college's policy barring discrimination on the basis of "race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation" in all recognized programs.

But the CLS chapter at University of California Hastings College of the Law did not in fact state that it would "no longer accept gay or lesbian members." Rather, CLS said it would no longer accept those students who unrepentantly engaged in homosexual conduct, whether or not they were gay or lesbian, as voting members or club leaders. This may seem like a distinction without a difference, but it is what makes this an issue of ideological, rather than status-based, discrimination.

Essentially, CLS "discriminates" on the basis of one's beliefs, not on the basis of one's immutable status (such as gender, race, sexual orientation, etc.). The group, while allowing all students to attend and participate in its meetings and activities, requires interested students to sign a Statement of Faith authored by the national CLS in order to become voting members or leaders. The Statement sets forth a series of beliefs, including that "[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership." The Statement adds that "[a] person's mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership." So, CLS does not bar gay students from voting membership or leadership positions if the student shares the group's view of homosexuality (and, for that matter, adultery and premarital sex). CLS instead requires that students who engage in these types of conduct be repentant about their actions if they wish to be voting members or leaders. This is central to the group's ability to associate freely around its shared values, as we have explained many times on these pages.

In its own summary of the episode at Cornell last year, the Sun recognizes this important distinction:

Last April the Student Assembly Finance Commission temporarily suspended funding to Chi Alpha when Chris Donohoe '09 was asked to step down from his leadership position after he told the group that he had accepted his homosexuality. Funding was later restored to the group, but the issue is still a topic of debate on campus.

Chi Alpha maintains that Donohoe was not asked to step down because of his sexual orientation, but rather because of a basic disagreement with the group's beliefs.

The article quotes FIRE's Will Creeley on this score, as he explains FIRE's position:

"It doesn't matter if one agrees with or strongly disagrees with Chi Alpha or CLS's views — it deals with the right of these groups to voice their message on campus," Will Creeley, director of legal and public advocacy for FIRE, said. "What's to gain by requiring a group, a faith-based group, to break with the tenets of its faith to acknowledge students who disagree with the fundamental values of that group's faith?"

"[Membership] choices are based not on a person's status as a member of the LGBT community but rather their views about that status," Creeley said. "It's a fine distinction but an important one. Groups have a right to engage with members of like mind."

In addition to using Will's analysis to clarify the issue, the article discusses the import of the forthcoming Martinez decision at Cornell and at other colleges and universities. On this point, the Sun quotes Cornell senior John Cetta, a CFN member and 2009 FIRE summer intern:

"I think that [the case] presents a great opportunity for the Court to clarify the protections offered to freedom of speech and association on public university campuses by the First Amendment," John Cetta '10, student representative to the University Assembly, stated in an e-mail. "The attention that the case will bring to the issue will hopefully provide guiding authority to the principles of free speech and free association: principles that Cornell claims to — and ought to — follow."

Indeed. Later in the article, Will makes the important point that the impact of Martinez will be felt not only in cases involving religious student organizations, but also any ideological student organization:

Creeley cautioned against the overreaching effects of barring discrimination in student group membership.

"The impact of this decision won't just sound with regards to faith-based student groups but whether or not that decision about group membership will eventually come to the floor with strictly political or strictly activist groups," Creeley said. "Once you say a group cannot discriminate on the basis of beliefs you open up a Pandora's box."

I agree, and that is all the more reason to watch closely as the Martinez case heads to oral argument before the Court.

UPDATE: The Cornell Daily Sun has since corrected its factual error regarding the background of the Martinez case. We thank the Sun for its vigilance and for covering this important issue.