A Tale Of Two Cases

From The National Day Of Prayer To Student-Club Bias At Law School

Some legal disputes are just plain easier to explain to lay audiences than others. Cases in point: the decision by a federal court in Wisconsin to declare the National Day of Prayer unconstitutional (easy) and the case argued before the U.S. Supreme Court last month involving funding of a Christian student club at a public law school (not so easy).

I was very pleasantly surprised one recent Thursday afternoon to learn that U.S. District Judge Barbara Crabb had declared a 1952 law establishing a National Day of Prayer (NDP) to be a First Amendment violation. 

How could it not be? The measure was passed by Congress shortly after the Rev. Billy Graham held a huge evangelistic rally in Washington and called for such a day. It was an act encouraging people to pray in “church” (no mention of other sanctuaries, this being the ’50s) or in private. Prayer is an inherently religious practice, and there is not a scintilla of secular purpose for it.

Having established the compelling logic of this, however, I knew it would not go down gently with the Religious Right. My hunch was correct, with comments denouncing it by Shirley Dobson (“a concerted effort by a small but determined number of people who have tried to prohibit all references to the Creator in the public square…”) and the Alliance Defense Fund (“It’s America’s heritage, and this day belongs to Americans.”) 

I don’t know what the fate of this case will be on appeal. Because the decision is so well steeped in American history, however, I thought it would provide a “teachable moment.”

We tried. AU’s Rob Boston and I did a number of television appearances the next day with that as our predicate. For example, I told lawyer and Fox host Megyn Kelly that early presidents such as Thomas Jefferson, James Madison and even Andrew Jackson were opposed to prayer proclamations and that the congressional debate on the National Day of Prayer even suggested that if you didn’t pray, you were probably a communist (again, this being the ’50s).

That encounter, though, reminded me that “teachable moments” are only possible when there are “learnable” listeners. Kelly was not impressed by my argument. In fact, she asserted that the NDP doesn’t have to be about religion, asking, “Why can’t it be a day where we take a moment and we stop and we acknowledge the role that God has played in the formation of this country and its laws? What’s so promotional about religion there?”

Hmmm. What in the world could God and prayer have to do with religion?

Both before and after the prayer day news I was immersed in the Supreme Court case Christian Legal Society v. Martinez. (I spent even more time on it because my wife, giving a speech outside London, was stuck – and as of this writing, is still stuck – by the volcanic ash from Iceland and couldn’t get home.) 

This dispute might be characterized as one of “dueling claims of discrimination.” The Christian Legal Society at Hastings College of the Law claims that it is the subject of discrimination because it does not receive official school recognition and a cut of the student fees like other student-run clubs. 

The law school, a division of the University of California, claims that the Christian group is not being treated differently because all student groups must not discriminate on the basis of status or belief. CLS refused to do that, insisting that full membership not be open to non-Christians and (at least) “unrepentant homosexuals.”

I admit that the policy of requiring a student-run club to admit everyone sounds strange to some people. Why does an environmental group have to admit members who want to chop down the California redwoods? Why does the Republican Club have to admit Democrats? 

Hastings’ rules may not be the best-constructed policy out there. The policy may even be “crazy” (as Justice Antonin Scalia characterized it during the oral argument), but that does not mean it’s also unconstitutional.

To be constitutional, the policy need only be “viewpoint neutral” – a legalistic way of saying it treats all groups the same. Hastings’ policy is certainly neutral, requiring all groups to admit all comers. This means school officials don’t have to decide whether a student was rejected for club membership by some “forbidden” reason: it is wrong if she was rejected for any reason. 

Moreover, the law school wants to steer completely clear of discrimination of every kind. Many institutions of higher education are embarrassed by the discrimination against Jews that was once common in higher education or the existence of clubs that excluded women and contributed to the “old boys’ network” that still plagues some legal circles. In light of this, is it really unreasonable for colleges to avoid even the whiff of discrimination?

The CLS case isn’t easy to summarize in a sound bite. But it may have profound implications. At one debate I did at the National Press Club, I suggested that giving government funds to groups that discriminate might unravel the whole civil rights rubric of the country. A critic of the Hastings policy, Roger Pilon of the Cato Institute, responded, “Yes, it would,” clearly pleased at the prospect.

Keep a close watch on this case. There’s a lot more here than meets the eye.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.