From Christianity Today:
In a 5-4 decision this morning, the Supreme Court said that a California law school can require a Christian group to open its leadership positions to all students, including those who disagree with the group’s statement of faith.
From the Constitution (we know this as the First Amendment):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (italics mine)
I know some will disagree with me on this. No doubt. I am no legal scholar. And I never claimed to be. But what I can do is read plain language.
The ruling pitted the liberals against the conservatives in a 5-4 decision.
Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Breyer, and Sotomayor, JJ., joined. Stevens, J., and Kennedy, J., filed concurring opinions. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.
First, as a matter of political property, peaceable assembly is owned by the people. It is not the government’s to regulate. If assembly is not peaceable, that’s another matter.
Second, rights are assumed. They are natural, whether by natural law or natural right it does not matter. They do not come by way of class. Ginsburg justifies the class-based approach in her opinion as she supported the prejudices of Hastings’ antagonism against religious orthodoxy.
Before considering the merits of CLS’s constitutional arguments, we must resolve a preliminary issue: CLS urges us to review the Nondiscrimination Policy as written—prohibiting discrimination on several enumerated bases, including religion and sexual orientation—and not as a requirement that all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, “targe[t] solely those groups whose beliefs are based on religion or that disapprove of a particular kind of sexual behavior,” and leave other associations free to limit membership and leadership to individuals committed to the group’s ideology. Brief for Petitioner 19 (internal quotation marks omitted). For example, “[a] political . . .group can insist that its leaders support its purposes and beliefs,” CLS alleges, but “a religious group cannot.” Id., at 20.
In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. See, e.g., Grove City College v. Bell, 465 U. S. 555, 575–576 (1984); Bob Jones Univ. v. United States, 461 U. S. 574, 602–604 (1983). Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition. Cf. Norwood v. Harrison, 413 U. S. 455, 463 (1973) (“That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.”).
This summary statement set her agenda. She counters the group’s motivation to bypass Hastings’ “non-discrimination” rule specifically because it affects a group having a religious persuasion. And she does this by arguing always from within the framework of class-based preference.
So … let’s try a hypothetical here: What if an evangelical sought to join a “gay rights” group at Hastings, then brought in other evangelicals for the specific purpose of supplanting the class-based purpose of the group. Would this be tolerated? I maintain that it would be seen as disruptive. And I suspect that Ginsburg would find motivation in a case that she cited as a matter regarding disruptive behavior.
As earlier pointed out, supra, at 1, 12–13, we do not write on a blank slate; we have three times before considered clashes between public universities and student groups seeking official recognition or its attendant benefits. First, in Healy, a state college denied school affiliation to a student group that wished to form a local chapter of Students for a Democratic Society (SDS). 408 U. S., at
170. Characterizing SDS’s mission as violent and disruptive, and finding the organization’s philosophy repugnant, the college completely banned the SDS chapter from campus; in its effort to sever all channels of communication between students and the group, university officials went so far as to disband a meeting of SDS members in a campus coffee shop. Id., at 174–176. The college, we noted,could require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law,” including “reasonable standards respecting conduct.” Id., at 193.
But as she continues, a contradiction appears:
But a public educational institution exceeds constitutional bounds, we held, when it “restrict[s]speech or association simply because it finds the views expressed by [a] group to be abhorrent.” Id., at 187–188. 15
Though she explains away this contradiction in her note:
15 The dissent relies heavily on Healy, post, at 13–17, but its otherwise exhaustive account of the case elides the very fact the Healy Court identified as dispositive: The president of the college explicitly denied the student group official recognition because of the group’s viewpoint. See 408 U. S, at 187 (“The mere disagreement of the President with the group’s philosophy affords no reason to deny it recognition.”). In this case, in contrast, Hastings denied CLS recognition not because the school wanted to silence the “viewpoint that CLS sought to express through its membership requirements,” post, at 17, n. 2, but because CLS, insisting on preferential treatment, declined to comply with the open-access policy applicable to all RSOs, see R. A. V. v. St. Paul, 505 U. S. 377, 390 (1992) (“Where the [State] does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory . . . philosophy.” (emphasis added)). As discussed infra, at 28–31, Hastings’ all-comers policy is paradigmatically viewpoint neutral. The dissent’s contention that “the identity of the student group” is the only “way of distinguishing Healy,” post, at 16, is thus untenable. (bold mine)
What we are left with is a new conflict which she does not resolve: In the position of Hastings we have the school acting (limiting its willingness to support) based on a belief system (class-based pluralism) and challenging the actions of a group (limiting its membership) which proceed out of an associated belief system (a position other than and opposed to class-based pluralism).
What stands out vividly in her writing is that she thinks religious discrimination must be direct and cannot be indirect. She does not believe it possible that Hastings’ policy can oppose the religious content of a group that holds to a legal perspective with some motivation other than dialectical pluralism. She completely ignores the possibility that the Nondiscrimination Policy itself might actually be discriminatory against all other views as it makes them, as she stated, “abhorrent.”
What Ginsburg misses, and other liberals like her miss, is that they are not practicing pluralism.