Pat Vaughn

AFA general counsel

September 2010 – The rule of law is an age-old concept that simply requires the courts to apply impartially the law to the facts of a dispute. In recent years liberal activist judges have undermined the rule of law by making up their own laws. A liberal majority on the U.S. Supreme Court recently blasted the foundations of rule of law when it reconstructed the facts under which a student chapter of the Christian Legal Society was denied recognition by Hastings College of Law, a part of the University of California system.

In Christian Legal Society v. Hastings College of Law, the Court ruled that CLS’s rights to free speech, freedom of association, and freedom of religion were not violated by Hastings’ insistence that if CLS wanted to be a recognized student organization, CLS would have to accept non-Christians and practicing homosexuals as members and officers. Justice Ruth Bader Ginsberg reached that decision by reconstructing the facts to fit the verdict. She said, “Hastings interprets its nondiscrimination policy to mandate acceptance of all comers: School-approved groups must ‘allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her status] or beliefs.’”

However, that is not the true story. Justice Samuel Alito, with whom Chief Justice John Roberts, Justices Antonin Scalia and Clarence Thomas joined in dissent, clarified that CLS was not denied recognition under the “all comers policy.” Rather, Hastings admitted that the nondiscrimination policy (in effect when the CLS application was denied) permitted political, social and cultural student organizations to select officer and members who are dedicated to a particular set of ideals or beliefs.

For example, on the Hastings campus, La Raza limited voting membership to “students of Raza background;” and Silenced Right limited voting membership to students who “are committed to the group’s mission of spreading the pro-life message.” CLS is the only student organization Hastings ever refused to recognize.

The conservative justices recognized that CLS was banned from Hastings College of Law over political correctness. Justice Alito stated that the Court’s decision means there is “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

This case demonstrates that the rule of law cannot function in a postmodern society, where truth is ever-changing. In this environment, not only do the meanings of laws and constitutions evolve, but the facts of an individual case can be reconstructed to achieve a politically correct result.

While the convictions of conservatives require them to be loyal to the law and the facts, progressives – even on the U.S. Supreme Court – are willing to wield their positions of power to impose a result that suits their personal views.

University of Houston jumped on the Court’s ruling and notified their CLS chapter that it must drop its statement of faith requirement if it wants to stay on campus for the Fall 2010 semester. University of Iowa is also withholding recognition of its CLS chapter for the fall term while it considers Hastings’ policy.

The dominoes are starting to fall.   

EQUAL ACCESS
ACLU propaganda and bullying after the Supreme Court’s school prayer cases have resulted in many public schools denying Christian groups access to students or use of school facilities. In response, Congress enacted the Equal Access Act to compel schools to stop discriminating against religious groups and to assure that all groups must be treated the same. For example, a school must give the Fellowship of Christian Athletes or a Bible club the same access to students and school facilities that any other non-curriculum club has. Under the Equal Access Act a school was required to recognize a Christian club unless it closed the campus to all groups, including Key Clubs, Boy Scouts and a chess club.

In CLS v. Hastings, the Supreme Court provided a school administrator who is hostile to Christianity a way to discriminate. The school can adopt an “all comers” policy that prohibits a Christian club from requiring that its leaders profess faith in Christ and live a moral life. Although Christian student clubs are generally open to all students and the Christian kids are struggling to get their non-Christian friends so they can share the Gospel, the Court’s “whatever” standard for leaders eliminates any assurance that the message and activities of the club will reflect Christ’s rather narrow declaration, “I am the Way, the Truth and the Life. No one comes to the Father except through Me.”