Future of religious liberty at Supreme Court is cloudy—for now

Opinion,Ken Klukowski

Supreme Court justices today denied review on an important religious liberty case, and we’ll find out soon whether they’ll agree to take the next big one.

San Diego State University’s policy allows student groups to require their membership to support and agree with the group’s mission and beliefs. College Democrats can require members to be Democrats and deny membership to a Republican student.

There are 115 recognized student organizations, covering many topics and perspectives on the SDSU campus.      

However, the school does not allow groups to consider religion. As a consequence, three Christian student organizations have been denied official recognition because they—Shocker!—require all members to support their doctrinal statement of Christian faith.

The most important of these is this: “I hereby publicly confess my belief in the Lord Jesus Christ as God and only Savior and give witness to the regenerating power of the Holy Spirit in my life.”

These groups sued, arguing that a publicly funded university—which is bound by the First Amendment—is discriminating against a religious group for its religious speech and freedom of religious association.

The U.S. Court of Appeals for the 9th Circuit sided with the university, saying that the school may bar these religious organizations from recognition.

In Alpha Delta Chi-Delta Chapter v. Reed, SCOTUS was asked to review the lower court’s wrongheaded decision.

The Alliance Defense Fund petititioned for a write of certiorari asking the justices to (yet again) reverse the 9th Circuit's prior decision.

But the High Court denied the petition. That means at least for now this official discrimination against Christian groups will continue at SDSU.

In a separate case, I wrote a couple weeks ago about lawyers in Mt. Soledad Memorial Association v. Trunk petitioning SCOTUS to reverse the 9th Circuit and save the Mt. Soledad Veterans Memorial — also located in San Diego.

The column noted that the Department of Justice (DOJ) under Attorney General Eric Holder had not decided to ask the court to take the case. Allyson Ho and Kelly Shackleford represent the Soledad association.

After that column ran, DOJ filed cert. And in that cert petition they suggested to the Court that the justices grant DOJ’s petition to offer religious liberty arguments, but shut out Ho and Shackelford—from also participating in the argument.

Given that DOJ is likely to offer “ceremonial deism” arguments—that crosses in war memorials are okay because they’re just a cultural tradition devoid of any significant religious meaning—granting only DOJ’s petition would present a neutered and cramped vision of religious freedom and be a disservice to the nation.

By contrast, Ho and Shackelford are asking the Court to more broadly reconsider the direction the justices have taken over the past 23 years.

This case presents an ideal opportunity to bring the First Amendment closer to its historical and traditional meaning, and the Court should grant both DOJ’s and the association’s petitions to ensure these issues are fully considered.

Examiner legal contributor Ken Klukowski is director of the Center for Religious Liberty and the Family Research Council and on faculty at Liberty University School of Law.




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