Tuesday, July 20, 2010

The right to discriminate on religious grounds

In the opening paragraph of his dissent in Christian Legal Society v. Martinez (June 28, 2010) Justice Samuel Alito names the principle he finds animating the majority opinion: “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” I have come to think he is right.

But before I say why, let me review the facts of the case.

The Christian Legal Society is an organization with chapters at a number of law schools. The purpose of the society, according to the petitioner’s brief, is to “provide opportunities for fellowship, as well as moral and spiritual guidance, for Christian lawyers,” to promote “justice religious liberty, and biblical conflict resolution” and encourage “lawyers to furnish legal services for the poor.”

Anyone can attend and participate in a C.L.S. meeting, but voting members and officers are required to “affirm their commitment to the group’s core beliefs” by signing a Statement of Faith that declares a trust in Jesus as one’s savior, and a belief in the Trinity as well as in the Bible as the inspired word of God. Those who sign the Statement of Faith are expected to live up to its precepts, and if they do not — if they do not refrain from “either participation in or advocacy of a sexually immoral lifestyle” — they disqualify themselves from C.L.S. membership. “Sexually immoral” behavior includes pre-marital sex, adultery and homosexual conduct.

And there’s the rub, at least as far as the University of California-Hastings College of the Law is concerned; for, according to its briefs, the school requires all R.S.O.’s (registered student organizations) to maintain an “all-comers” policy with regard to memberships and candidacy for group officers. In a deposition, the law school’s dean explained that “in order to be a registered student organization you have to allow all our students to be members and full participants if they want to.” (There is a dispute about just when this policy was put in place, the petitioners claiming that it was conveniently invented in the middle of the case, the law school claiming that it had been in force since 1990.)

Organizations that will not open their membership rolls to all comers can still form and have a campus presence and petition to use school facilities for meetings, but they will not be granted the benefits that come along with official recognition (which is different, Hastings is careful to point out, from positive sponsorship).

So the issue is joined: must C.L.S.’s right under the First Amendment to form an association of like-minded persons around an idea or an agenda give way — at least with respect to the privilege of R.S.O. status — to the nation’s and the university’s compelling interest in eliminating “invidious” discrimination? Or should the all-comers policy be relaxed in recognition of the right of an association to maintain the integrity of its declared purposes and beliefs?
Read the rest of this excellent piece here.


intellectualoid said...

I was thinking "Oh, no! He ripped off Stanley Fish!" Then I saw that you gave credit and a link.
My schedule (preparing for a major professional certification exam) hasn't allowed time to read the CLS v Martinez opinion, concurrences, and dissents. But Fish seems to hit the nail on the head.
Note, however, the (necessary?) corollary at the end of Fish's piece: "no view of education’s purposes, as long it is contestable (and they all are), should be the official view of the law school. Under cover of 'neutrality,' Hastings, with the majority’s approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community." Ponder that a minute.
Can an educational institution function without a view of education's purposes? Probably not. But perhaps it need not be so official (and dogmatic, as with Hastings) that it suppresses diversity in the name of diversity.

gdelassu said...

I agree with nearly everything that Dr. Fish has to say, and I especially agree with his deconstruction of the belief/conduct distinction. I will say, however, that the Christian Legal Society made two very important mistakes that gave rise to this unfortunate ruling:

1) CLS stipulated at the outset of the case that the much contested all-comers policy was in place at the start of the dispute. CLS later tried to argue that the school had changed its policy to require "all comers" only after CLS had applied for recognition as a student group. In other words, CLS stipulated a point that it really needed to contest before the appeals court, thus giving away the legal farm (so to speak) right at the beginning of its lawsuit.

2) I think that CLS's other big mistake was to focus its arguments on the law school's policy requiring it to admit gay and lesbian students. The law school's policies also require CLS to admit non-Christians. CLS's briefs make very little of this point, and both sides of this lawsuit focus on the sexual-orientation aspects of the suit.

This was a mistake, because it is much more obviously discriminatory to make a Christian group accept non-Christian members than to make it accept homosexual members. I grant that the latter is also discriminatory, but the former is even more starkly discriminatory, so they should have played up that aspect of the case more emphatically. I am frankly surprised that Justice Alito did not make more of this fact in his dissent.

Anonymous said...

Hope this case turns out well. It seems like allowing "all comers" to have access to officer status in a group could really backfire: A large number of anti-homosexual people could join GLBT, get some people elected to office, and then make all sorts of rules that are anti-gay. It seems like a group would HAVE to make some kinds of requirements to be officers in order to keep the propose of the group focussed.