The Supreme Court convened on Monday in its final session of the term and released its judgments on a number of cases that have drawn deep interest”and stirred high anxiety.
One of the judgments was the case of the Christian Legal Society at the Hastings Law School in California ( Christian Legal Society v. Martinez ). I wrote on this case in our issue of June/July ( Vast Dangers in a Small Place ), and I regret to report that the outcome turned out to be quite as grievous as the one I anticipated in that piece.
Justice Ginsburg, in her opinion for the majority, makes light of the disabilities that have been saddled on this small group of Christian students. Justice Alito, in his dissenting opinion comes closer to the truth when he remarks on the principle he thinks established in this case: no freedom for expression that offends prevailing standards of political correctness in our countrys institutions of higher learning.
But even that sense of things stops decorously short of naming the unlovely facts before us: The way has been prepared now to push Christian groups off the better campuses in this country, private or public, and to stamp orthodox Christians, Jews, and Muslims as illegitimate, with no standing to respectability in the life of their colleges and universities.
The case came about when the Christian Legal Society (CLS) was informed that it could not be regarded as registered student organization on campus of this public law school because it ran afoul of the non-discrimination policy of the school, which barred (in typical fashion) all projects and programs that discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. The last one was of course the key: The CLS, as a seriously Christian group, depended on an article of fidelity to a Christian life, and that ruled out students who openly proclaimed and practiced a homosexual life.
The argument was made that this policy of non-discrimination bore with powerful, discriminatory effects solely on the religious. For nearly all groups it was possible to forego discriminations based on age, color, and race (except for La Raza, an Hispanic group that defined itself in its title by race). But to bar discriminations based on sexual orientation would be to strike at doctrines that were part of the defining features of orthodoxy for Christians, Jews, and Muslims.
In order to deal with this argument, the law school quickly brought forth the claim that the school was also governed by an all-comers policy: Each group had to be open to everyone who wished to join, regardless of whether they shared the purposes and commitments of the group. The dean of the law school affirmed, in this vein, that a Jewish group would be obliged to admit Muslims, the Muslims would have to take in Jews, the blacks would have to accept members of the Ku Klux Klan.
That claim on its face seemed implausible. But more than that, as I argued last month, the claim struck at the deepest moral axioms of a free society: The freedom to seek legitimate ends in politics entailed the freedom to join with others who shared those ends, and that freedom of association entailed the freedom to preserve the integrity of the association.
Justice Kennedy, providing the fifth vote against the CLS, missed the point here in a rather sophomoric way when he thought it was claim mainly to enhance the capacity of the group to convey its message: A group that can limit membership to those who agree in full with its aims and purposes may be more effective in delivering its message or furthering its expressive objectives.
No, it is not merely a matter of effectiveness in communicating. A group may contain members wholly inarticulate, burdened with stammering, more inclined to hold to themselves rather than to broadcast to the world”and yet its chief interest may still lie in preserving the integrity of the mission that brings the members together.
Michael McConnell, who argued the case for the Christian Legal Society, found it hard to take seriously this all-comers policy, and pronounced it as simply absurd. During the oral argument”and in the aftermath as well”he seemed quite astonished that the justices should be drawn by this issue, that they should be lured away to distraction by the deeply implausible fancy of it all.
And now it turns out that he was right. With the opinion delivered on Monday by Justice Ginsburg, it became clear that all of the razzle-dazzle over the all-comers policy was essentially beside the point. It was, in the end, a head-fake, a grand distraction.
The majority pointed out that the CLS had signed a stipulation that the all-comers policy was indeed established as the policy at the law school. That was sufficient, they thought, to dissolve the claim that the CLS was singled out for a restriction that was imposed only on the religious.
But, as Justice Alito argued in dissent, that policy on all comers had been brought forth later to counter the claim that the Christians been picked out for special treatment. The law school claimed that the policy had been in effect since 1990. Alito pointed out that there had been no document, no official record anywhere to confirm that this policy had any authoritative standing.
If the law school asserted now that it was committed to a policy of admitting all comers to all groups, well . . . the CLS would take the word of the dean and accept the stipulation. But after all of the quick moves, the fact remained that the CLS was deprived of its standing on the campus because it ran afoul of the non-discrimination policy. It was deprived of official standing, not because of the all-comers policy, but because it could not accept a policy that barred all discriminations based on sexual orientation.
For Justice Ginsburg that was the point that finally carried. After all the grand distractions, the simple point was that a Christian group could not accept a policy that barred them from insisting that the only rightful form of sex was the coupling of a man and woman within the frame and commitments of marriage.
It was apparently beyond imagining, for Ginsburg, that anyone would doubt that a policy that barred such discriminations of sexual orientation would be anything but fair, defensible, even viewpoint neutral. So absorbed now was this perspective among liberals that it was hard to conceive anyone would challenge its palpable justice.
What the case finally came down to then was precisely the issue that I had noted in my First Things essay ”that the policies barring discriminations based on sexual orientation stood on the same moral plane as the policies that barred discriminations based on race.
That point was never explicitly stated or argued during the oral argument, and now, two months later, it was never explicitly raised and defended in the course of Ginsburgs opinion. What proved decisive was the understanding so critical to the case”and to the sexual politics of the Left ”that it is never to be examined and tested for its validity in a strenuous way.
What can we expect to unfold now? The reasoning in the case may be hidden, but the effects will be manifest and they will start springing up in the land when the academic year resumes in the fall.
Over thirty years ago, in the famous Bakke case, Justice Lewis Powell held that schemes of racial preference could be constitutionally acceptable so long as colleges and universities did not focus exclusively on race as they gauged the worth of applicants. It was necessary, he said, to take race into account in connection with many other attributes that could make a student appealing to an office of admissions. The package of admirable traits should be diverse, and the aim, of course, was to produce an enrollment with a wholesome diversity.
Diversity then became the mantra, and as it has been played out with inventive variations while it reordered and reconfigured the academy. Now, with the decision on the Christian Legal Society, Justice Kennedy and his colleagues have put another powerful weapon in the hands of the people who rule the universities and colleges. We can expect to see, in the course of this next year, resolutions brought forth in faculty meetings to couple the standing policy on non-discrimination with this new policy of all-comers”since, as we shall hear, that policy has been sustained now by the Supreme Court.
The Court confirmed this novel policy, after all, for a public university, and if it can be installed there, it could be installed with far more freedom in a private college. But it is a policy that perfectly fits and amplifies the scheme of diversity. And once installed, that policy provides the lever for finally driving Christian groups from the life of the college. The scene is in place now to have gay activists seek to become officers in these groups, as they have at Tufts and other schools. Indeed, that has been the test of choice, used in challenging the Christian groups and bringing the complaints that threaten their standing in their colleges.
Ginsburg argued that there was little of practical consequence at stake here. The Christian Legal Society might be denied official standing and funds, but the members could still meet, whether in classrooms or perhaps in catacombs off the campus. They may not be listed on official websites and calendars, but hey, as Justice Ginsburg points out, the word is quickly put out these days on e-mails and other websites.
For Ginsburg it was an act of high presumption for the Christians, with such a sectarian character, claiming the funds that flow to other groups in a public university”groups that have not offended against the new morality by their refusal to purge themselves of moral judgments on the ways people engage in sex. But Ginsburg serenely misses the point: It is not about the money or the use of the bulletin boards and websites. It is about the willingness to withdraw, from Christian groups, their claim to stand as fully legitimate groups in the life of the college, as though there were something faintly noxious about them, something that bars them from the company of people who respect the claims of propriety and reason.
That is what Ruth Ginsburg delivered to the country this past Monday, with Anthony Kennedy standing once again as the fellow traveler or enabler. She delivered her judgment, and a summary of her opinion, in a brave act of doing her duty. Her husband, Martin, an accomplished lawyer and professor of law, died just the day before, this past Sunday.
She was there, in Court, to perform her duties in bringing the term to its end. It was a lovely act of duty honored, while thoroughly detached from the canons of moral judgment that lend, to duty, its moral substance.
Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and a member of the First Things editorial and advisory boards. His latest book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law , is just out from Cambridge University Press.
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