In ordinary times, or in earlier days, when the judges were more clear-headed, the case of Christian Legal Society v. Martinez would have been, as they say, a “slam dunk.” The case centers on a religious group of students in a law school, and yet the case would have been settled readily on axioms of the law firmly planted, without the need to say anything in particular about religion. The case at hand involves the Christian Legal Society at the Hastings Law School of the University of California in San Francisco. An earlier group of Christian students had drawn only five to seven students, and of them one was an avowed lesbian and two others held views strikingly at odds with what the adherents to the Christian Legal Society regarded as orthodox Christianity. As was spelled out by the national association of CLS in 2004, Christian life rejected in principle an “unrepentant participation in or advocacy of a sexually immoral lifestyle,” meaning “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.”
Hastings Law School students who shared that more orthodox sense of Christianity formed a chapter of the Christian Legal Society and sought recognition. The chapter would have discussions of the law, looking for a Christian perspective on the issues of the day. But they would also have sessions dedicated to the study of the Bible. The group was open to members who were gripped by a homosexual “orientation” but not to people who practiced and advocated the homosexual life.
But that, of course, became the point that separated this group from all others when the CLS sought formal status as a “recognized student organization.” The group encountered the usual regulations in the name of both “diversity” and the tests of a legitimate organization: The law school would bar all projects and programs that might “discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” In a curious way, the regulations would take their bearings from discriminations already made “unlawful” in the positive law. But it appeared now that only a group marked by orthodoxy in religion—whether Christian, Jewish, or Islamic—would bar students who openly proclaimed their adherence to a homosexual life.
But it was precisely on that ground of rejecting the homosexual life that the administration of the law school revoked its recognition of the Christian Legal Society as a “student group” with a standing comparable to that of other groups. CLS meetings could not be advertised or noticed officially, and the society would not be eligible for the funding accorded to other groups.
The administration, when challenged, offered a further iteration of its policy, sweeping more broadly now into the “all-comers policy”—namely, that each group had to be open to anyone, to all comers, quite regardless of whether they shared the principles that marked the very character of the organization. To a questioner not quite believing, Dean Leo Martinez confirmed that a chapter of the Jewish Anti-Defamation League would have to admit Muslims, and a gathering of black students would have to admit Ku Klux Klan members and, presumably, skinheads.
And yet more than that was required: These discordant members could not be barred from eligibility to any of the offices or positions of leadership within the group, including the position of directing studies of the Bible. With a small contingent of Christian students, it was entirely conceivable that a determined group of anti-Christians could enter the organization, vote out its leaders, install new articles of association, and offer an atheistic study of the Bible. As the redoubtable Michael McConnell pointed out, arguing before the Supreme Court in late April, the Republicans could be taken over by Democrats, or a group of environmentalists could be taken over by debunkers of global warming. These possibilities, springing from the rules, showed that the scheme was, as McConnell put it in his brief—and to the Court—“frankly absurd.”
It was absurd because it destroyed the possibility of preserving groups with any character or integrity, and because, for that reason, it made a virtual nullity of the elementary right to a “freedom of association.” The problem at this level has nothing to do with religion. It turns, rather, on the deep axioms of moral judgment and republican government. At the level of moral axioms, there is no moral right to associate in pursuit of wrongful projects and ends. No freedom of association, even in a democracy, would establish a right to conduct a criminal enterprise such as the Mafia or to establish private schooling in Fagin’s School of Pickpocketry. The law can limit the freedom to engage in illegitimate associations and to incite people to wrongful things.
And yet, those judgments in the law are enduringly open to argument, and it makes a notable difference as to whether we are dealing with the politics of a republican regime—a regime in which people are free to press their interests in a public argument and a public competition for power. As the writers of the Federalist Papers recognized, it is simply in the nature of human beings to differ over the things that are right or wrong, just or unjust. And then the axioms fall into place: If it were legitimate, say, to seek a “right to abortion,” then one should be free to join with others who seek to change the law and make that surgery legitimate.
But, in turn, the right to form an association of that kind has to entail the right to preserve the integrity of that association. If the leader of a group devoted to “abortion rights” suddenly comes to oppose abortion, can she not be rightly removed? She might claim, of course, that she is being penalized for her views, but it matters profoundly that she is being fired by a private association. That is strikingly different from being barred by the law from holding to her position or from being punished for her public advocacy. Indeed, she remains free to organize an opposition to abortion or to seek a comparable position of leadership in a pro-life group.
On the strength of these axioms, it should be clear that a Christian legal group, committed to Christian orthodoxy, should have the most elementary right to preserve its own integrity by refusing to accept members or elevate as leaders people who are at odds with the principles that define the group. Unless, of course, there is something illegitimate about the ends and character of the group.
And that is the issue, strangely enough, that could no longer be taken as settled, beyond dispute. For it has now become an orthodoxy in the leading law schools and colleges to question the legitimacy of anyone who expresses any moral objection to the homosexual life.
The only permission that may still be available to hold such views may be given to institutions that claim the shelter of their religious commitments. It has mainly been the religious who have stood against the current of opinion in elite circles and insisted on holding to their moral objections to “sexual immorality” in all of its forms. That is why a Christian group was the target of the exclusion in this case, and why it fell to Michael McConnell to carry the argument to the Supreme Court with a claim to religious freedom.
In his years of distinguished teaching and scholarship, Michael McConnell has marked off the field of religion and the Constitution as a preserve he virtually “owns.” After a stint as a federal judge, he has returned to the academy as the director of constitutional studies at the law school at Stanford. In his argument before the Court, he was once again in command: His arguments were thoughtful, precise, on the point, and it required the persistent interruption by the members of the Court to prevent him from finishing the lucid explanations he was rendering in response to the questions flying at him from all directions.
The notion of the “all-comers” policy was so absurd, as McConnell said, that the authorities never thought of applying it to any group apart from the Christians. The pro-life group was permitted to welcome only those who shared their goals, and the gay-lesbian activists went unchallenged when they reserved the right to remove any officer who “work[s] against the spirit of the organization’s goals and objectives.” Apparently, the gay activists could exclude Christians who rejected their morality, but the Christians could not in turn bar the gay activists who rejected theirs.
The case was narrowing into a matter of discrimination against the religious. Unless, again, it was only the religious who would violate this principle newly recognized: that it was wrongful to cast any adverse moral judgments on the homosexual life.
This question was finally introduced in the oral argument by Justice Sonia Sotomayor, in a manner indirect but telling: What “if a group wanted to exclude all black people, all women, all handicapped persons”? Would the school be obliged “to accept that group and recognize it, give it funds, and otherwise lend it space?” Could the law school not bar a racist group as illegitimate? If it were on the same plane of wrongness to discriminate on the basis of “sexual orientation” as to discriminate on the basis of race, the complaints about religious discrimination would dissolve.
McConnell said that of course those kinds of racist groups could be barred because they were founded on discriminations based on “status,” not belief. Presumably he meant that the wrong in discrimination based on race and sex inhered in drawing adverse moral inferences about people as though race or sex actually controlled or determined their character. But the distinction between “status” and “belief” did not explain itself, and so Justice John Paul Stevens chimed in: What if a group was simply founded on an earnest “belief” in the inferiority of black people and the superiority of whites? Justice Anthony Kennedy was tempted to give a certain standing to claims of “belief” as a ground of association that could claim a certain standing to be respected, mainly because the beliefs were held. Earnestly held, that is, and not to be tested by any indecorous probing into their truth.
The question pressed by Sotomayor can be answered only by explaining why a moral discrimination based on race would be wrong in all instances, whereas discrimination based on “sexual orientation” simply could not claim the same standing. For one thing, the moral discriminations based on race or sex worked by making moral predictions about the conduct or the moral worth of people based solely on their race or sex. But the groups defined by homosexual acts or “sexual orientations” are marked as groups precisely by the acts they commit. People are described as “arsonists,” for example, when they commit arson, and the recoil from arsonists is a recoil from the crime of arson.
The problem here is that any activity we could name could be directed to a hurtful or wrongful end. Sexual acts, whether heterosexual or homosexual, can be deployed as assaults to injure and degrade. Some people may be “oriented” to rape, or to sadomasochism or bestiality. Even gay and lesbian activists will argue over the question of whether they regard members of the Man–Boy Love Association as standing legitimately in their circle, with a “sexual orientation” they respect.
Would even the most liberal among us not have serious reservations if they had to judge whether a man committed to sadomasochism or bestiality had the maturity to act as an adoptive father? Which is to say, there may be many instances in the law in which even liberals think it legitimate to draw adverse inferences about people, and their legal claims, based on their “sexual orientation.”
But of course that vexing matter is routinely glided over when people declaim in our politics about the wrong of discriminations based on “sexual orientation.” What they really mean is “discriminations against homosexuals.” The term “sexual orientation” nicely blocks any inquiry into what we really mean to say, and the trick is this: If we forgo the use of that hazy term, what words do we put in its place? The answer is not obvious. But until an answer is provided, there is simply no tenable ground for a law that bars, in a sweeping, undiscriminating way, all discriminations based on “sexual orientation.”
It is revealing, in this respect, that Bill Clinton supported a federal bill to bar discriminations based on “sexual orientation,” and yet he was willing to exempt from the coverage of that bill religious groups whose teachings could not permit them that same receding of judgment on matters of sexuality. But he would never have contemplated any such religious exemption from the laws that barred discriminations based on race. The lesson is implicit but inescapable: that for Clinton discrimination based on sexual orientation does not stand on the same plane of wrongness as discrimination based on race. And yet, if it were legitimate for the religious to hold moral objections to the homosexual life, why would it not be legitimate for other people to hold the same objections, even if they did not claim any distinctly religious ground for their convictions?
The case of Christian Legal Society v. Martinez is likely to turn, for most of the judges, on this issue that was never argued explicitly and fully before the Court. The four liberal justices seem virtually certain to hold that a policy that forbids discrimination based on sexual orientation is, on its face, as plausible and legitimate as a policy that bars racial discrimination.
What might Justice Kennedy do as the fifth, or swing, vote? His work has already shaped, or tilted, the ground of jurisprudence on which the case comes before the Court for judgment. In two notable cases, Romer v. Evans (1996) and Lawrence v. Texas (2003), he has planted in the law the proposition that the objection to homosexuality is an “irrational animus”—that it cannot be legitimate to incorporate anywhere in the law an adverse moral judgment on the homosexual life. He is willing to respect certain religious objections to homosexuality—perhaps because he can tuck religious belief into a domain he considers not exactly “rational.”
The moral objection, in his view, can only be irrational, but it may be tolerable among certain eccentric religious people, so long as they do not impose their judgments on others. For that slender reason, Kennedy may come down on the side of the Christian students in this case. He may do this in part out of a lingering willingness to do something in support of the religious but also, we may suspect, in part because he persistently wishes to deny the radical implications of the jurisprudence he now has put into place.
Justice Scalia has suggested some technical grounds on which he might conceivably decline, in this case, to uphold the appeal of the Christian group. There is the question of whether the counsel for the CLS improvidently stipulated their understanding that the “all-comers” policy was in fact the reigning policy of the law school—that it barred all groups from excluding people who did not faithfully share their principles. If that were the case, Scalia has suggested, the CLS would have no grounds on which to claim discrimination against the religious.
Justice Alito, however, has fastened on McConnell’s report that other groups were not in fact held to that policy on “all comers” proclaimed by the dean. Scalia thought that argument would be stronger if McConnell could do more than cite the rules governing the other groups and actually supply evidence that the policies were not being enforced on other groups. Professor McConnell insisted, however, that it finally did not matter: Whether the policy of “non-discrimination” was imposed only on the Christians, or whether every group was barred from preserving its own integrity as a group, either policy was unconstitutional.
And yet, if it is truly wrong to discriminate on the basis of sexual orientation, as wrong as it is to discriminate on the basis of race, the objections dissolve. It could not be a discrimination against the religious when the religious are barred, along with all others, from doing a thing seen as wrongful. And if all groups are barred from wrongful discriminations, the obligation to take “all comers” may be silly, but it may do little practical harm. Either policy becomes, then, quite arguably legitimate and beyond constitutional challenge.
If the case is decided here against the Christian students, it will not matter if the swing votes come from judges, otherwise sympathetic, who are responding to certain oddities in the procedures. Those refinements are likely to be washed away in the public accounts and the public understanding of the case. If the Christian Legal Society loses, the lesson drawn from the case is likely to be the one that proved to be decisive even though it was never fully argued: that it was indeed legitimate to bar discrimination based on sexual orientation and that it is legitimate for law schools and colleges and universities to make a moral insistence on that rule even if it means virtually pushing off the campus, and stamping as illegitimate, any groups that proclaim openly the orthodox teaching of Christianity and Judaism that has been woven into the life of this country from its beginning.
That prospect is at once staggering and yet quite real, and it is not to be dismissed out of hand. We have already seen the inclination to deny standing and legitimacy to Christian groups at Tufts Univer-sity and other places. No one with any familiarity with elite schools in the East can doubt that this rejec-tion of the seriously religious is already in the air. At my own college, Amherst, the new students often are counseled to free themselves from any inhibitions on plunging into a sexual life happily free of commitments. And they usually are instructed with a moral severity to recede from any objections to the homosexual life.
The message to the religious is, in short: You had best be silent, or be careful about mouthing your objections. For you must understand, at the outset, that your moral out-look is not respected here. One of my students posted on his door a sign that ran a bar through the words “same-sex marriage.” He was warned, by his resident adviser, that he was coming near the edge of an actionable offense. His offense was to express in public a view held by most of the American peo-ple on a matter of controversy in our current politics.
The Supreme Court may produce, in the case of the Christian Legal Society, a decision suitably qualified, narrowed, muffled. But if it comes down in favor of the law school against the students, we can expect that decision to be trumpeted and amplified. We can expect that the “best” schools will lead all others in claiming a high moral stance as they purge Christian fellowships from the recognized life of colleges and universities. And we can ex-pect that this lesson, taught from the most prestigious schools, will ripple outward, spreading widely in the land: a new bigotry with moral pretensions—an animus to religion driven by a religious passion but serenely detached, now, from both revelation and reason.
Hadley Arkes, a member of the editorial and advisory board of First Things, is the Ney Professor of American Institutions at Amherst College. His latest book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, will be published in June.