Jewish observers are conflicted over a Supreme Court ruling in a free speech case involving a campus Christian group.
Some welcomed the ruling as an affirmation of a publicly funded institution’s right to bar discrimination by groups in the name of religion.
But even those who hailed the ruling acknowledged the concerns of religious groups who say the ruling limits their right to religious expression in membership and hiring.
The ruling, delivered June 28, upheld a decision by the Hastings School of Law at the University of California to deny funds and official recognition to the campus Christian Legal Society because it barred gays. The society prohibited membership to anyone who engages in “unrepentant homosexual conduct.”
In a 5-4 decision, the justices ruled the publicly funded law school was justified in denying the society official status and student activities fees.
“The group’s bylaws did not comply with Hastings’ open-access policy because they excluded students based on religion and sexual orientation,” wrote Justice Ruth Bader Ginsberg for the majority.
The Jewish Council for Public Affairs, the national community relations arm of the federation movement, filed an amicus brief supporting the law school’s position.
“Today’s Supreme Court decision reaffirms long-standing precedents that state and local governments can and should prohibit the use of taxpayer-supported public funding to organizations and groups that restrict their membership,” said a JCPA press release issued after the ruling.
But the umbrella group also acknowledged the concerns of religious groups.
“Some Jewish groups feel that the free exercise rights of religious groups should include a right to admit or hire without regard to anti-discrimination provisions,” the JCPA statement said. “We deeply respect this concern, as well as a strong application of the Free Exercise clause.
“However, JCPA also believes where government funds are involved, we are called to ensure a non-discriminatory educational environment,” it said.
Although his organization did not take sides in the case, Marc Stern of the American Jewish Congress is among those worried about the ruling’s impact on religious groups.
“I think the Christians should have won,” said Stern, AJCongress’ assistant executive director and co-director of its Commission on Law and Social Action. “I think in the end, religious liberty and political liberty have taken a real hit in the name of distancing the government from any form of discrimination.”
Stern said the decision spells potential trouble for campus groups with a religious orientation.
“This is going to open up a whole lot of litigation,” he predicted. “From the calls I get from Jewish agencies and from what I know is going on, there are real restrictions here. Now any administration can put in place nondiscrimination rules on the basis of religion.”
Stern said the ruling could threaten the stability of Jewish organizations on state college campuses.
“There is nothing standing between Jews for Jesus taking over Hillel now. At Hastings Law School, Hillel can be taken over by Jews for Jesus, with the Supreme Court’s blessing — and apparently the blessing of JCPA, the ADL, and so on.”
Like JCPA, the Anti-Defamation League supported the ruling.
“Hastings is saying they don’t want to officially recognize a group if the group is saying to some students, ‘You are not welcome to join our group,’” Steven Freeman, director of legal affairs at the ADL, told NJJN. “The Christian Legal Society was being exclusionary. Hastings is saying ‘that is not acceptable.’” Freeman called the potential of a Jews for Jesus takeover of Hillel “an argument the law professors would really enjoy, but in the real world it is unlikely to happen. But the broader concern I have is that a student shouldn’t be compelled to pay for a club that he or she can’t go to. The gay students at Hastings are basically being told ‘you are not welcome.’”
Andrew Getraer, executive director of the Hillel chapter on Rutgers University’s New Brunswick campus, noted that Hillel is not a membership organization.
According to Jeff Rubin, Hillel’s national communications director in Washington, DC, anyone — Jewish or not — can take part in group activities and be elected to office in a campus chapter.
Being taken over by Jews for Jesus “is a theoretical issue but practically speaking, it is ridiculous and alarmist,” Getraer told NJJN. “Jews for Jesus is not a threat to take over any campus Jewish organization I am aware of anywhere.”
Stern insists the decision “is a sea change in our constitutional thinking because of the prominence of notions of equality over liberty. The Jewish community is committed to the notion that equality is the most important value. It is clearly a very important value. I don’t mean to denigrate it.
“But it is not the only value, and here where there seems so little to be gained in terms of equality but so much to lose in liberty, it seems to me the court made the wrong decision.”
Steve Gutow, president of the JCPA and a Reconstructionist rabbi, disagrees.
“I certainly respect the people who worry about violations of free exercise of religion,” he said. “But the court made the right decision.”