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Divided federal court orders anti-gay student club in Illinois reinstated

Voting 2-1, a panel of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, reaffirmed its tentative ruling from last fall, ordering Southern Illinois University (SIU) Law School to reinstate official recognition for the Christian Legal Society (CLS) at the school, pending a final trial on the merits of the case. The dean of the Law School had suspended recognition for CLS because it formally excludes gay people from membership unless they affirm the group’s repudiation of extramarital sex.

The July 10 ruling reversed a decision by Chief Judge G. Patrick Murphy of the U.S. District Court for the Southern District of Illinois.

The case is one of many brought around the country by student chapters of CLS seeking to vindicate their right to receive university recognition and financial support without having to comply with anti-discrimination policies barring sexual orientation discrimination. Since recognized student organizations receive money derived from student fees, affording official recognition to CLS would require, in effect, that LGBT students subsidize an organization that excludes them.

SIU is a state university, so it is bound by the First Amendment, which protects freedom of speech and expressive association and free exercise of religion. CLS argued that its First Amendment rights were violated. SIU argued that it was entitled to enforce its non-discrimination policy, and that requiring CLS not to discriminate would not impose an unconstitutional burden.

Writing for the majority, Judge Diane S. Sykes—a recent appointee of George W. Bush and a member of the Federalist Society, a right-wing training ground for Bush judicial picks, and of the St. Thomas Moore Society, an organization of Catholic attorneys—asserted that the group had a good chance to prevail on several of its constitutional claims. Indeed, Sykes speculated that CLS had not even violated the non-discrimination policy, giving credence to the group’s argument that because it excluded only those who refused to disavow and refrain from non-marital sex, it was conditioning membership on conduct and beliefs, not sexual orientation.

Sykes also asserted that since the university had not specified which federal or state law might be violated by CLS policy, it had forfeited any argument that student organizations may not violate the law. The opinion fails to take note of the Illinois nondiscrimination law, or the possibility that the federal equal protection clause might bar financial support for discriminatory student organizations.

Sykes compared the suit to Boy Scouts of America v. Dale and Hurley v. Irish Gay, Lesbian, Bisexual Group of Boston, cases in which the Supreme Court found that laws forbidding anti-gay discrimination had to give way to the free speech and association rights of the Boy Scouts and the organizers of the Boston St. Patrick’s Day Parade. She contended that this was another case of inappropriate forced association, and that CLS was being punished by SIU for asserting its free speech rights.

In a heated, lengthy dissent, Judge Diane P. Wood, a Clinton appointee, argued that the majority opinion misconceived the law and misconstrued the appropriate role of an appeals court in dealing with the trial judge’s exercise of discretion when a preliminary injunction is sought. She pointed out that the record before the court was so “spartan” that it was inappropriate for the appeals court judges to substitute its judgment for that of the district judge. She also pointed out that the freedom of association argument cut both ways—just as CLS argued that it had a constitutional right not to take as members students who disagreed with its philosophy, the university also could assert a right not to be required to associate with an organization that violated its non-discrimination policies.

Court rulings on CLS recognition on campuses vary around the country, some finding that concerns by universities about providing equal educational opportunity and prohibiting discrimination are dispositive, while others have found the free exercise, speech, and association arguments trump. In April, a federal court in California ruled against the CLS. Ultimately, the Supreme Court is going to have to take on the issue.

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Updated 5:17 pm, July 20, 2018
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