Anti-gay groups, primarily with a religious focus, often bombard public universities to call into question nondiscrimination policies. But they’ve lost all but one challenge and are now impeded from forming the bigoted groups they set out to create by judicial rulings that reaffirm schools’ right to refuse them.

Christian Legal Society v. Eck (CLS v. Eck), an obscure 2008 decision from Montana, may be the most important of these rulings. It is the first case to reject the notion that organizations can circumvent nondiscrimination laws by admitting gays but prohibiting homosexual activity.

For almost 20 years, since the first gay rights laws appeared, religious (and other) groups who refuse gay people, or permit them only if they stay silent or celibate, have dodged such laws by saying they don’t condemn gays; they just don’t condone the homosexual act.

This “hate the sin, love the sinner” ruse is legal. But the Montana court rejected it. United States Magistrate Judge Jeremiah Lynch opined in CLS v. Eck that religious bias against homosexuality is the same as bias against gays. “This is a distinction without a difference,” he said. There is “no appreciable difference between an individual ... being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.

“Not only do these policies proscribe homosexual conduct, [they] also require that the group’s members and officers refrain from unrepentant ‘advocacy of a sexually immoral lifestyle,’ which is defined as including a homosexual lifestyle. Requiring a homosexual to not only refrain from engaging in homosexual conduct but to also repent of his or her sexual identity is not meaningfully different from excluding homosexuals from membership. Because CLS’ membership policies effectively exclude openly homosexual individuals, those policies discriminate based on sexual orientation.”

Federal District Court Judge, Richard F. Cebull adopted the findings and rulings in late May. This means two things: that the same treatment must be applied to homosexual conduct as to being gay; and that same-sex couples who are married cannot be prohibited from having sexual relations.

Consequently, while many states, such as California, already prohibit granting public funds to schools that discriminate against gays, now all colleges that receive federal and state funds will have to revise their policies or face loss of support and, ultimately, extinction.

Pepperdine University and Brigham Young University are but a few offenders who stand to lose their funding.

CLS v. Eck challenged the nondiscrimination policy at the University of Montana School of Law (UMSL), asking a federal court to compel UMSL to fund and recognize it, even though its membership selection requirements discriminated on the basis of religion and sexual orientation.

CLS, like many evangelical student groups throughout the country, claimed that its meetings and other activities were open to all students regardless of race, religion or sexual orientation. However, it mandated that voting members must not engage in “acts of the sinful nature of which the repentant believer is forgiven and from which he or she is to be cleansed including all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.”

But such policies are seldom, if ever, enforced against any of the “violators,” with the exception of homosexuals. And the court found that the clause conflicted with UMSL’s nondiscrimination provision, which says students have the right to be free from discrimination, harassment or intimidation based on actual or perceived religion, sexual orientation, gender, identity and expression and familial status. It found that the nondiscrimination policy burdened student religious groups’ expressive activity, if at all, in only an incidental manner, while the policy of nondiscrimination furthered the legitimate interest of providing all law students with the opportunity to participate in the full range of UMLS activities. Further, it noted that schools with such nondiscrimination policies are not targeting or singling out religious beliefs. Rather their policies are neutrally applied and intended for general application. It said school nondiscrimination policies apply to all student groups, so that no student can be excluded from any group simply because of race, religion, or sexual orientation.