The Court Rules

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.