The issue in the case was whether a public school (UC Hastings, the law school at UC Davis) could deny funding and recognition to a religious student organization that required its officers and voting members to agree with certain core religious viewpoints, including ones that violated the school's non-discrimination policy (the religious viewpoint at issue - that unrepentant gay sex is a sin). After the school denied the student group funding based on the fact that the group's bylaws violated the non-discrimination policy, the group sued.
This is yet another case from the Supreme Court with an LGBT connection, the other being Doe v. Reed. I blogged earlier that, although Doe v. Reed involved some gay issues, it wasn't actually an LGBT rights case. What about this one?
Some seem to think that Christian Legal Society is, in fact, a "victory" for gays and lesbians (at least that's what the email from the National LGBT Bar Association told me). Additionally, others believe the breakdown of the court in today's 5-4 decision might reflect how the Justices might come out should the Prop 8 trial make its way to One First Street.
I think I'm somewhere in the middle on this one. I tend to agree with Lyle Denniston at SCOTUSblog, who points out:
The case has a very narrow holding, and it's not directly about the fact that the Christian Legal Society was excluding members based on their sexual orientation. Even Justice Alito's dissent focuses less on any sort of argument for morality than it does the right to expression entitled to the Christian Legal Society. At the same time, it is an argument that pits freedom of religion against homosexuality. At the very least, this is a major victory in that it upheld a law school policy that refused to allow tuition from gay students or allies from going to a student group that espoused homophobia.
The case that was handed down today that I think is a bigger indicator of future cases, though, is the Second Amendment case, McDonald v. City of Chicago. In McDonald, the Court held in another 5-4 decision that the Second Amendment was incorporated to the states through the Fourteenth Amendment. The potentially important part of the decision for gay rights advocates, though, is that the five Justices that voted to incorporate the Second Amendment did so based on a conservative interpretation of the Constitution, as noted by Steven Calabresi:
Justice Alito’s opinion is also of tremendous importance because it is based on the premis that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them....The McDonald case makes it clear that five justices (Roberts, Alito, Scalia, Thomas, and Kennedy) are now committed to recognizing only rights that are deeply rooted in history and tradition. This is the first occasion on which Roberts and Alito have squarely addressed this issue, and it is also significant because Justice Kennedy, who strayed from the conservative camp when he found a constitutional right to commit sodomy, is now back to signing on to opinions that confine constitutional rights to those that are deeply rooted in history and tradition.
Does McDonald mean that Justice Kennedy has switched camps yet again? Probably not, but it's interesting that he signed onto an opinion from Justice Alito with such strong language as to what substantive due process rights will be recognized by the Court.