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.Read the rest of this excellent piece here.
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?