On April 19, 2010, the Supreme Court heard oral arguments in Christian Legal Society v. Martinez. At the same time, Californians wait for an opinion from a federal judge in Perry v. Schwarzenegger. Both cases involve government financial support of and recognition of minority groups. The strange thing is that in one case Christians are in the minority and the gay community wants government to withhold recognition of the group. In the other case the gay community is in the minority and Christians want government to withhold recognition of the group. These cases highlight the need for all of us to think more carefully about whether government should be about majority rule or whether government should protect a plurality of perspectives.
In Christian Legal Society (CLS), a student group at Hastings College of Law, a state school, has been denied formal recognition and funding by the law school. The school has a policy that all student groups that receive funding must be open to all students. The Christian Legal Society student group allows all students to join but limits positions of leadership to those who adhere to its mission and a lifestyle commitment – one that excludes gays. The group is allowed to exist with any policies it wants to, but it will not receive funding until leadership becomes open to all students. Members of CLS say government has violated their right of religious freedom and their right to freedom of association. Their argument is that government should treat their organization the same as others.
In Perry, citizens of California have voted to change the California State Constitution so that government recognition of marriage is limited to heterosexuals. Same-sex couples may engage in marriage ceremonies but they will not receive government recognition or government benefits. Plaintiffs in Perry, a same-sex couple, argue that California citizens have violated the US Constitution’s protection of the fundamental right to marry and the Equal Protection Clause. Their argument is that government should treat their unions the same as others.
In both cases, the group is allowed to define itself according to its own identity. Same-sex partners can hold their own ceremonies. The CLS student group can hold meetings according to its own beliefs. However, in both cases government recognition of and funding of the group is at stake. In CLS. the majority is represented by the school policy. The majority says only groups that hold to a non-discrimination policy will be recognized and receive public funding. In Perry, the majority is represented by the voters of California. The majority says only marriages involving one man and one woman will be recognized and receive public benefits. In both cases, the majority is absolutely certain that it has the best interest of the community at heart. But, the minority wants to be recognized and be treated equally, not simply allowed to exist.
The tension between gay rights and religious freedom is only just beginning to be faced by the courts. If we treat these matters as simple majority rule, litigation will never end. The self-identity of churches, schools, non-government associations, businesses and even families will be a matter of public policy debate and court battles for decades to come.
But, there is another way. If we think of government as responsible to protect different perspectives, then it seems clear that the minority groups in both of these cases should be treated similarly. Ironically, the gay community and conservative Christians have an opportunity here. They should consider banding together to argue in favor of government recognition and equitable treatment of minority views. As someone who believes in equitable treatment of both conservative Christians and the gay community, this seems to me to be common sense. Almost no one I know, however, agrees with me. The vast majority take up one side or the other. I see years of litigation ahead.