The Supreme Court delivered its ruling in the Christian Legal Society case today. At first reading, it looks pretty bad—and so our friend Rick Garnett writes:
The Court handed down its opinion in the Christian Legal Society case this morning. By a 5-4 vote, the Court upheld a rule requiring officially recognized student groups at Hastings College of the Law to “accept all comers” as members and leaders. As Justice Alito explains in his dissent, this rule is not the rule that was actually applied to the Christian Legal Society when it was denied official recognition for insisting that its members and leaders affirm a Christian statement of belief. Instead, this “accept all comers” rule—which, even if it were in fact the rule, would be a very silly rule—seems to have been seized upon in order to make less apparent the extent to which Hastings was singling out the Christian Legal Society, its views, and the views of other such groups, for special disapproval. (Justice Stevens’ concurring opinion is more candid in expressing this disapproval.)
The opinion and outcome is, I think, deeply disappointing. (Note: I filed, with Tom Berg, an amicus brief in the case.) Like Justice Alito, “I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.” What is particularly unsettling, even ominous, is that the Court—and Justice Kennedy in his concurring opinion—seems entirely unable to understand (or perhaps simply does not believe) that it is not invidious, and it is not contrary to dialogue, diversity, education, etc., for associations to act in accord with a shared, distinctive ethos.
June 28th, 2010 | 1:10 pm
What on earth could it mean to “accept all comers” as leaders? On this bit of information, if I join a club with the intent of destroying it, the club must accept me as a leader.
I hope the full ruling makes more sense than this.
June 28th, 2010 | 1:13 pm
The opinion can be found here.
June 28th, 2010 | 2:51 pm
Here’s the thing: It won’t be evenly applied. It will be particularly applied.
June 28th, 2010 | 5:17 pm
It probably won’t be evenly applied, but I think students should start joining “official” organizations and make a big stink about being rejected to push the university administrators to see the consequences of this inane decision anyway.
June 28th, 2010 | 7:16 pm
The holding was not about the content of the plaintiff’s speech. The plaintiffs were seeking to be a registered student organization that received a portion of the student services fee. The university was not punishing the student organization for its stance on gays; it simply said “you can only have our money if you follow our rules.” This is not exactly a revolutionary holding, despite Alito’s rant in dissent.
This is an important point — the CLS wanted to do something no other student group was allowed to do. They were, to use a phrase, seeking “special rights,” and the high court was quite correct in denying their request. It’ll make the medicine go down a bit better if you realize that this ruling also prohibits the Muslim Brotherhood from getting part of the $$ or using university facilities.
Please remember that the freedom of speech is a “negative” right mostly. That is, the First Amendment only says no one can be punished in the criminal system for simply making statements. (Even this isn’t absolute, and anyone who makes a bomb joke in an airport learns that lesson.) There is no right to money for one’s opinions, nor even a right to any audience. The CLS can continue to meet off campus without fear of being expelled, and would probably be happier meeting in, say, a local church.
June 28th, 2010 | 10:20 pm
I am baffled to see how this case is different from Rosenberger v. University of Virginia, a 1995 decision in which the Supremes struck down a regulation prohibiting all religious groups from becoming registered student organizations. (Well, one distinction would be that Justices Thomas and Scalia were in the majority in Rosenberger, Justices Stevens, Ginsburg and Breyer were in dissent, and Justice Kennedy, predictably, switched sides.) It makes precisely no sense to apply an “all comers” rule (assuming arguendo that that was really the rule, and not something Hastings made up after the fact for litigation purposes) to a religious group, and the Christian Legal Society is in this respect no different than the Jewish Law Students or the Muslim Law Students. The Court’s opinion is more or less an extended effort to gut Rosenberger.
Frankly, I think Justice Stevens gives the game away. He doesn’t like Christians “persecuting” homosexuals because of “who [the latter] are” and views “discrimination” against homosexuals as morally on a plane with racism, anti-Semitism or misogyny. Result-oriented jurisprudence at its finest.
The case really needs to be read in tandem with McDonald v. Chicago, the gun rights case also decided today, and in particular the extraordinarily harsh concurring opinion of Justice Scalia and the valedictory (and scarcely less harsh) dissenting opinion of Justice Stevens. Those two opinions are an excellent primer to the competing schools of judicial philosophy on display.
July 1st, 2010 | 2:13 pm
Someone wrote: “I am baffled to see how this case is different from Rosenberger v. University of Virginia.”
While I, too, am troubled by the Supremes’ decision in CLS, Rosenberger was different and is a foil to CLS.
In Rosenberger, the Christian organization was a University-recognized “Contracted Independent Organization” (CIO). CIOs had the right to apply to the University to subsidize the printing costs of their publications.
Rosenberger’s CIO published “Wide Awake: A Christian Perspective at UVA.” This student newspaper was viewed (correctly) as “primarily promoting a particular belief in or about a deity or an ultimate reality.” This admittedly religious viewpoint ran afoul of a University rule for CIO subsidy — you could not, under the rules, get subsidized for religious publications.
Rosenberger claimed this was unconstitutional viewpoint discrimination.
UVA replied in effect “We’re not discriminating against Christians or their viewpoints. We don’t subsidize ANY religious publications, whatever your religious beliefs. Musim and Mormon oriented pubs don’t get subsidies. Neither do atheist-oriented pubs because they also promote a belief about an Ultimate Reality (i.e. that there isn’t one).”
The Supremes disagreed. The school couldn’t single out religious viewpoints as non-favored. While the school may not have discriminated BETWEEN religious views (e.g. by liking Protestants more than Catholics), it disallowed “religious viewpoints” (including atheism) as a whole from subsidy. And this discrimination between “Religion” versus “Non-Religion” was unconstitutional.
The Hastings lawyers rather cleverly avoided this trap, by convincing the Court that the Hastings policy was an “All Comers” policy. No registered organization could, it claimed, discriminate against ANY student in terms of membership: The Democrat Caucus would have to admit Republicans, the anti-abortion group would have to admit pro-abortion advocates, the motorcycle club would have to allow motorcycle-haters and so on.
CLS v. Hastings isn’t really — at least as the Court articulated it — about viewpoint discrimination. Hastings pretty neatly avoided that snare. And the dissent goes into this in great detail, about the Hastings machinations.
CLS is really about whether the State can, in effect, “bribe” a group with a particular membership viewpoint into surrendering its right to enforce that viewpoint, by means of a subsidy. “If you want to limit membership in some way, religious, moral, social, or otherwise, OK — but you can’t get the subsidy if you do. So choose.”
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