Supreme Court Justice Ruth Bader Ginsburg, the second woman to be appointed to the Supreme Court following Sandra Day O’Connor passed away after a heroic bout with cancer. She was nominated to the Supreme Court by former president, Bill Clinton and replaced the late jurist Byron White who we have discussed in prior pieces. One must respect her early work as a litigator with regards to women’s issues and seeking legal reforms along with her tenacity to battle through her many health issues in recent years. She was also a close friend of the late Justice Antonin Scalia and proved that differences in ideology do not always need to come in the way of friendship.

Respectfully, however, the purpose of this blog is to educate on several issues including on law and religion. As a Supreme Court justice her work in this area has left much to be desired. In this piece, we will reflect on a couple of her opinions in controversial law and religion cases and gauge the probability of these opinions having a lasting impact on the law. We will focus in Part 1 here on her majority opinion in Christian Legal Society Chapter of the Univ. of Calif. v. Martinez (2010) and dissent in American Legion v. American Humanist Assoc. (2019).

I.        Christian Legal Society Chapter of the Univ. of Calif. v. Martinez

In Christian Legal Society Chapter of the Univ. of Calif. v. Martinez, the Court assessed whether a campus student organization, Christian Legal Society (CLS) was in violation of an “All Comers” policy instituted by the school to welcome any student into their respective student group. The organization in question had a policy that did not allow membership to those that were involved in relationships that were in violation of Christian teaching. If the organization did not comply with the “All Comers” policy, it would not receive funding.

The Supreme Court held in a 5-4 vote that the school should not be compelled to alter its “All Comers” policy to allow for exclusion of students based on conduct. In the majority opinion authored by Justice Ginsburg, the Court held that the Christian student organization in question did not meet the standards to be classified as a Registered Student Organization (RSO) that required the organization to be adherent to state law policy barring discrimination on several bases including religion and sexual orientation.

The Court found that the limited public forum standard applied was both reasonable and viewpoint neutral, and therefore did not violate CLS’s right to free speech. The right to expressive association was also not violated because the Christian student organization was not forced to accept members, it simply restricted access to facilities and funds. It also claims no religious beliefs were violated but that the policy was neutral and applied to all student groups.

The Court also found persuasive the argument that the financial assistance to groups came from mandatory student fees and the school did not want to compel funds from students that would be rejected as a member from the general student body. The Court also found that the school would necessarily undergo a daunting task of having to ascertain the group’s motivations to exclude members with a belief vs. status investigation. Finally, the precedential state law discrimination principles would necessarily apply and were not outside of the Constitutional limits.

One could argue that this decision may be challenged in the future with a different composition of the Supreme Court. One of the major aspects of Justice Ginsburg’s opinion that could be subject to challenge is the belief vs. status assessment that is the core of the decision. In its most basic premises, the student group did not restrict membership on orientation, but rather on lifestyle. While there may have been a restriction for those actively in a homosexual relationship, that same restriction could have seemingly applied to those in a heterosexual relationship actively engaging in consummation outside of marriage. In both of these cases, the bedrock is belief and active lifestyle, not status. It does not matter the homosexual or heterosexual inclination; it is rather the lifestyle decisions and beliefs of the prospective member. A faith-based student group likely sought to preserve the religious mission by admitting members that follow their respective belief system.

There could be a plausible argument to be made that the school actions targeted an organization with a faith mission. It is different if there was evidence stating status was the defining issue for restriction, but that does not appear in the facts. Furthermore, the Court weakly presented that it would be a “daunting” task to ascertain the student group’s decisions to assess if there was a status violation. The “daunting” task should have been of no concern to the Court, it is not the Court’s responsibility to engage in commentary opining on the school’s status of individual protocol implementation to conform with the law. Its position is to merely interpret the law as written and apply it to the given facts.

A Supreme Court decision finding the school in error would also be harmonious with the pre-existing state law that prohibited discrimination on religion and sexual orientation. The Court would in fact be clarifying that there was religious discrimination by the school in violation of the state law, but no violation on the part of the organization with regards to sexual orientation because it was never established as a restricted group based upon these facts. If the Court was to make a sound pronouncement, it could find the school in violation of state law.

There is a counter-argument, however, that Justice Gorsuch’s decision in Bostock this past term would in fact strengthen the majority opinion here when assessing belief vs. status. There he wrote in the majority opinion that sexual orientation could be violated under the gender class in Title VII discrimination matters. He found that necessarily there would be a gender violation because it is the nature of the respective gender itself that created discriminatory sexual orientation conduct based on gender expectations. The argument as applied here would likely present that expectations of sexual orientation would bear on decisions of admittance into the student group with the understanding that certain lifestyles must be adhered to depending on the nature of a respective sexual orientation.

While a formidable challenge, it can still be contested because the interest of religious belief must be weighed accordingly. The text of the state law clearly states there must be no discrimination based on religious belief.  Any type of a sexual orientation expectation relating to consummate relationships here would necessarily fall under religious belief of the mission of the organization, not on a matter of orientation alone. It presents a general principle, not animus towards a respective individual. There would be compliance with the All-Comers policy so to speak because the group in of itself is open to everyone, however, it is the decision of the individual as to whether they believe their lifestyle complies with the mission. If their conscience lifestyle decisions are not in compliance with the mission, then they could not proceed to becoming a member, but this does not change the fact that the group was initially open to them. Furthermore, it provided under the group’s rules that there was an allowance for an evolution of lifestyle decision-making that eventually reaches compliance with the mission of the group.

Overall, if this case was revisited again, it is not unrealistic that the Supreme Court would carefully reconsider the nature of the religious interest under these or similar facts and be protective of the group’s religious mission.

II.        American Legion v. American Humanist Assoc.

In American Legion v. American Humanist Assoc., the Supreme Court ruled that a WWI memorial cross erected on now public land near a highway does not violate the Establishment Clause. It was originally erected as a tribute to WWI veterans when it was still private land. The land was eventually sold to the government and a highway was built around it. The cross is an imposing structure but it clearly stands as a war memorial monument. The majority opinion authored by Justice Alito articulated that the cross, although originating as a Christian symbol, later assumed a secular meaning. Its historical importance diluted its Christian symbolism. Government action to remove the memorial could also be considered on its surface an appearance showing hostility towards religion.

In Justice Ginsburg’s dissent, she emphasized that the cross is staple symbol of Christianity and its nature as a war memorial does not change this symbolism. She argued that the cross on now public land presents the appearance of prioritizing Christianity over other faiths and non-religion. Justice Ginsburg would have remedied the situation by relocating the monument to private land or by transferring ownership of the land and monument to a private party.

Here, Justice Ginsburg failed to focus on the original intent of the Establishment Clause. The Establishment Clause was enacted to prohibit government from compelling a religious belief on its population and in turn have a church that is state run, modeled like the Church of England. A factor for early settlers in the colonies in their decision to depart England was the religious intolerance shown towards their beliefs. Protestant sects that broke off from the Church of England were looked upon disfavorably as were Catholics and other faiths. They experienced various forms of persecution. The King of England was the defacto “head” of the church and government was largely an influence in its faith practice. The framers wanted to avoid a similar situation, for example a figure like George Washington being the head of the “American Church” with various sects experiencing persecution if not part of this tradition. Another example that was to be avoided was forcing people of faith to convert to a respective sect or punishments for not being a person of faith.

Now, in the present day we again reflect on the cross. The cross is a symbol of Christianity, but much like the Christmas Creche debates and Menorah debates, a representation of such a symbol does not amount to compulsion. One could argue the Supreme Court here did not go far enough in focusing on this point, but instead rather the “evolving” conceptual understanding of the memorial. Nowhere in the facts does it state that there was punishment in the local community via monetary or another form for not being a Christian. The cross itself does not have this power, nor does it show that the government favors a religious preference and actively addresses it over other faiths. If a Menorah was to be put up next to it for Jewish veterans, that would also not amount to a violation. It is representing the faith reflection of a local community, not compelling others to join the community or be used as a tool for animus towards other beliefs. The outcome of this matter would be different if a Menorah bid was made and was rejected for unsubstantiated reasons that hinted at animus.

III.       Conclusion

Overall, the direction of the Court will likely transition to greater protection for religious freedom and conscience rights if Judge Amy Barrett is to be confirmed to the Supreme Court in the spot left vacant due to the death of Justice Ginsburg. She was a clerk for Justice Scalia and has written on law and religion issues. Her jurisprudence and scholarly assessment will be the topic of a future post. It is not unrealistic to suggest that the Court may reassess the issues presented in Christian Legal Society with a more sympathetic view towards religious interests. In American Humanist, however, the Court has continued its movement towards broader acceptance of religious symbolism compatible with the Establishment Clause. With the addition of Judge Barrett, the Court may take a bolder approach to these matters and could consider more seminal issues such as reassessing the role of prayer in other aspects of life such as education and extracurricular activities sponsored by schools. It will be an interesting evolution to consider.