COLUMN: the Constitution vs. nondiscrimination policies

Wednesday, July 7, 2010 | 12:30 p.m. CDT; updated 12:31 p.m. CDT, Thursday, July 8, 2010

"Rights" guaranteed in our Constitution are not absolute. Laws are vague about specifics — we know what a given law is about, but it is up to the courts to define its meaning. Interpretation is often required by our highest courts. This is most evident concerning the First Amendment.

In Christian Legal Society v. Martinez the court tackled an issue that shows how laws can cause confusion. The law says that the government cannot limit our right to free speech. So, do anti-discrimination rules deny this freedom? More specifically, where is the line drawn? In a related note, last week's confirmation hearings for Elena Kagan as a Supreme Court justice addressed this same question.

This case dealt with the very first "rights" of the Constitution: our right to practice our own religion and our right to free and open speech. Here the law is vague about specifics.

The anti-discrimination rule at Hastings College of the Law states that the college will not recognize and, therefore, will not support in terms of facilities or funding, any group that violates the University of California-Hasting's anti-discrimination rule. The aggrieved party, the Christian Legal Society, prohibits membership to those who "do not share the organization's core beliefs about religion and sexual orientation."

On June 24, Justice Ruth Bader Ginsberg, writing for the majority, stated the question clearly, "May a public law school condition its official recognition of a student group — and the attendant use of school funds and facilities — on the organization's agreement to open eligibility for membership and leadership to all students?"

The court took the issue as the fairness of the law school's anti-discrimination rule. Recognition as a student organization is not based on the political or religious views of the organization but on the premise that the organization meets specific rules developed and adopted by the institution for all recognized organizations. The Christian Legal Society does not subscribe to that rule.

The rule is simple. "(Hastings) shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation."

The fact that CLS would not change its local bylaws to accept gays and lesbians is a clear violation of that rule, and the rule applies to all registered student organizations by UC-Hastings. Therefore, the court decided, this is not an issue of prohibition, but an issue of fairness of policy, and that policy was deemed fair. The Supreme Court ruled that the law school lawfully denied CLS recognition as a student organization.

Last week's Elena Kagan confirmation hearings made it clear that her support of Harvard University's nondiscrimination rule was a key issue for the Republicans. During her tenure as dean of the university's law school, she continued to enforce Harvard's 1979 anti-discrimination policy denying the Armed Forces from recruiting on campus. The "Don't ask, don't tell" policy and the First Amendment were the issues.

On Sept. 20, 2005, Kagan wrote, "As a result of this policy, the military was barred for many years from using the services of (the Office of Career Services)." Like the Hastings case, the anti-discrimination rule applied to all users of the OCS, not just the military. Kagan continued the policy.

Although the U.S. Supreme Court, in Rumsfeld v. Forum for Academic and Institutional Rights, with the majority opinion written by Chief Justice Roberts, ruled in the military's favor, it also recognized that federal law "forces institutions to choose between enforcing their nondiscrimination policy ... and continuing to receive specified federal funding."

The only absolute is that there are no absolutes, and when there is a conflict, it is the high court’s position to interpret the law. Both the case dealing with denial of recognition and the case dealing with denial of entry were decided based on the high court’s interpretation of the First Amendment, the Solomon Amendment and equal access. But supporting an institution’s nondiscrimination policy was, indeed, Kagan’s responsibility. She did so with the zeal and honesty that we would expect from a university dean. That leadership needs to be honored.

The UC Hastings case concerned a private organization. Rumsfeld v. Forum for Academic and Institutional Rights concerned government equal access. Both were judged by our high courts, not as anti-Christian or anti-military, but on law.

As the Senate prepares to vote on Kagan's nomination to the Supreme Court, the "right side" of the aisle will again bring forward Kagan's "anti-military" policy. This is wrong, and I urge senators McCaskill and Bond to ignore this obvious neo-conservative propaganda and vote for Kagan's confirmation.

David Rosman is an award-winning editor, writer, professional speaker and college instructor in communications, ethics, business and politics. You can read more of David’s commentaries at and New York Journal of Books.

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