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Two federal appellate courts may be on a collision course over the religious right of Christian student groups to exclude homosexuals and the power of universities to withhold benefits to those groups based on that discrimination. The Christian Legal Society, which has filed a half-dozen test cases against law schools around the country, couldn’t be happier about a potential circuit split. The society began filing suits in 2004, emboldened by the U.S. Supreme Court’s 2000 decision in Boy Scouts of America v. Dale, 530 U.S. 640, which held that requiring a group to admit a homosexual as assistant scoutmaster violated the scouts’ rights of free association and expression. In the face of litigation, some law school authorities blinked, carving out religious exceptions to their nondiscrimination policies, including Ohio State University Michael E. Moritz College of Law and Florida State University College of Law. More recently, Arizona State University College of Law and Pennsylvania State University Dickinson School of Law have settled similar suits. But the Seventh and Ninth Circuit U.S. courts of appeals will confront the issues head on in two separate appeals. In April, a federal judge in San Francisco became the first in the country to reject claims by Christian student groups at Hastings College of the Law. U.S. District Judge Jeffrey White said that public colleges and universities may not be forced to provide benefits and recognition to groups that discriminate in membership and selection of officers based on sexual orientation. White issued a summary judgment holding that the Hastings policy “easily” fulfills the standard of a compelling interest in protecting students from discrimination. Now that decision, Christian Legal Society v. Kane, WL997217, is on appeal to the Ninth Circuit, which is expected to hear arguments early next year. “We’re in an area where there are competing First Amendment considerations,” said Ethan Schulman, an attorney with Howard, Rice, Nemerovski, Canady, Falk & Rabkin who defended Hastings. “From the law school’s perspective, it is whether a public institution can be forced to subsidize admittedly discriminatory organizations. That is particularly offensive to the university. From the standpoint of CLS and its allies, they see the issue narrowly: Can they be forced to admit members who don’t share their beliefs?” he said. “But no one has forced them to admit [homosexual] members. They can meet on their own nickel and admit anyone they choose,” he said. Meanwhile, CLS filed a similar suit against Southern Illinois University School of Law after Christian student groups were denied recognition based on discrimination against homosexuals. Although the district court denied a preliminary injunction, the Seventh Circuit stepped in to order the injunction, forcing the school to recognize the Christian student groups while the court pondered the constitutional implications. That appeal remains pending before the circuit court, Christian Legal Society v. Walker, 05-3239. “The constitutional association right is crystal clear,” said Casey Mattox, a CLS attorney in the Southern Illinois case. “We have a stronger argument than the Boy Scouts case,” he said. A DIFFERENT TACK The Southern Illinois law school case took a different tack than the Hastings case. At Southern Illinois, student groups asserted that they would exclude anyone who engaged in sex outside marriage, thus not targeting only homosexuals. It is about conduct, not orientation, according to Mattox. In a May 19 order in the Hastings case, White found that orientation versus conduct a “distinction without a difference” and refused to change his decision. Ultimately, CLS wants this left at the U.S. Supreme Court’s door. “There is a hope [at CLS] that the Supreme Court will take one of these cases and clarify the law,” he said. The campus Christian groups argue that official recognition gives them access to student fees, mailing lists, bulletin boards, meeting rooms and other benefits. But the groups run afoul of school nondiscrimination policies by limiting membership and officers to those who do not participate in homosexual conduct or advocate homosexuality. Already the American Civil Liberties Union and several secular groups have weighed in with amicus briefs on opposing sides. ACLU attorney Adam Schwartz in Chicago wrote in support of Southern Illinois in the Seventh Circuit case. “We think a public university is within its rights when it creates an inclusive educational environment,” he said. Pamela A. MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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