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.
Here and here is everything from the court.
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.
And again
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.
June 29th, 2010 | 1:21 am | #1
“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.”
It would probably be seen as disruptive, but since this Supreme Court ruling sets a precedent, then folks who want to test this precedent to see if they would be “tolerated” should not be discouraged from doing so.
For example, if non-Muslims want to join a Muslim group “for the specific purpose of supplanting the class-based purpose” of the Muslim group, then they should do so in accord and in coherence to this Supreme Court decision.
June 29th, 2010 | 6:00 am | #2
The right to peaceable assembly is clearly restricted to assembly in order to protest the government, so that doesn’t apply here. This doesn’t technically prohibit freedom of religion just because the government isn’t providing rooms and funding for religious groups, either. But I do think it’s an awful decision. The effect is to ban any religious group with a statement of faith, and that includes Unitarian Universalists, who exclude excluvists. If I wanted to join a Unitarian Universalist student group and started a Bible study in which I contradicted their only point of unity, they could do nothing to stop me if they wanted to keep their funding and use of university facilities at a school with a policy like this.
The effect, then, is that this is a prohibition of religious student groups on campus, and that is a state abridgement of freedom of religion. It’s not the refusal to fund that’s an issue. It’s the prevention of using university space. They can always find space off-campus, so not being given space isn’t the problem. Refusal to give the space when they give it to other groups does seem to me to be a problem. But the majority refused to hear that issue and sent it to the uber-liberal ninth circuit to decide that. We’ll be seeing this again, and Kennedy might favor the Christian Legal Society on that issue.
June 29th, 2010 | 6:04 am | #3
On the hypothetical, I think you’re wrong. This opinion only applies with viewpoint-neutral policies. If someone arbitrarily restricted religious groups this way but allowed the College Democrats to restrict their membership to actual Democrats, Ginsburg would have considered it a different issue. Certainly Kennedy would have held it as unconstitutional and switched his vote. The majority as it is didn’t decide that issue, at any rate.
I think they even mentioned the case of a pro-choice group with pro-life people seeking membership and leadership positions. According to this policy, the group can’t deny those people the chance to seek membership or leadership positions, and the majority is fine with that. So I think they would consistently say the same of a gay-rights group with students who seek to join or become leaders while opposing homosexuality.
June 29th, 2010 | 6:49 am | #4
A fuller account of why I think this a bad decision is here.
June 29th, 2010 | 8:58 am | #5
Here also is Dr. Stanley Carlson-Thies, of the Institutional Religious Freedom Alliance (IRFA), on this latest decision: Negative CLS Decision: Supreme Court Undermines Freedom of Association:
June 29th, 2010 | 9:40 am | #6
[...] do no people wonder about the reverse that “protected” race based and gender based groups can be led by those they’d [...]
June 29th, 2010 | 9:56 am | #7
Unless I’m mistaken I think you are all leaving out a very relevant factor:
From what I understand the school collects a fee from every student to fund clubs and organizations. Any student group may form a new club and tap that collective fund (which, again, all students *must* pay into) but the group has to be open to all students (again *all* students have to pay into this fund). That’s basically it. The evangelical club voted that gays couldn’t join it, they had to give up funding.
In theory a gay student can join an evangelical club opposed to gay rights, a evangelical student can join a gay rights club. But I believe the club can require new members agree to their stances, so if the evangelical student is willing to sign a pledge he will work towards gay rights or the gay student is willing to sign a pledge he will work against homosexuality, they both can join the respective clubs and the clubs can receive funding as they are open to all students.
The right to assemble here isn’t violated. It seems perfectly reasonable that if you’re going to tap other people’s wallets you have to be open to them, otherwise use your own wallet!
June 29th, 2010 | 3:23 pm | #8
Boonton,
By that standard you bypass any tolerance for group distinctiveness.
Yes, they could, as she stated, use the facilities freely, but will not be recognized, and thus lose the benefits of recognition, if they take that route.
Yes, my First Amendment point was a very, very weak one. But the “equal justice” principle ought apply. After all, the group is not forming a church. It is a question of distinct world view which Hastings finds abhorrent enough to discriminate against in a back-handed fashion.
This is how religious bigotry works when it is disguised. It is the elimination of practical diversity by the enforcement of uniformity.
June 29th, 2010 | 3:31 pm | #9
It seems to me the ‘takeover’ problem assumes all clubs are governed by a purely democratic charter. Why should this be the case? If a group’s charter is committed to, say, gay rights, it can simply be unchangeable. Or founding members can be given greater say in the clubs governance, or tenure can be given added weight. In such cases ‘takeover’ ceases to become a viable strategy as the evangelical joining the gay rights club or the gay joining the ‘no gay marriage’ club will be unable to change the club’s stances simply by joining and voting.
Likewise the school has a host of possible responses if students start gaming the system by using a ‘swarm and vote’ tactic of shutting down clubs with minority viewpoints. For example, for purposes of funding they can limit how many clubs a student can join in order to count. If you register for 100 clubs then only the first two count, for example, in terms of funding. If members of the gay rights club try to subvert the anti-gay rights club by joining them they put their own funding at risk. Or the student fees can be turned into vouchers letting students allocate funds to clubs as they see fit. The gays can join the anti-gay club but they will be opting to take money from the gay club and give it to the anti-gay club.
What the conservatives on the court seem to be doing in dissent here is to present a rather interesting type of judicial activism. It’s not enough that gov’t make no rule inhibiting your free expression. You have to be guaranteed that all gov’t policies are always the wisest possible to that opportunities for expression are maximized.
While that would be nice if it always happened one value of the legislative system is that allows for a learning process. If the college club system becomes a virtual video game of rapaging ‘club subverters’ then the college students can petition to revise their policies. The idea that free speech means you have a right to demand only the most intelligent policies by gov’t that permits no ‘gaming’ of the speech market would be very interesting if conservatives took it seriously. For example, consider a policy to auction broadcast licenses. People with money could outbid everyone else, buy all the permits and refuse to broadcast the views they don’t like. Consider public demonstrations in parks. Usually permits are issued on a first come first serve basis. Yet a minority viewpoint can be silenced by a majority group that gobbles up the permits first for desirable times. For example, the organizers of Saint Patrick’s Day’s Parade in NYC seem to get the prime permits as opposed to those seeking to protest the exclusion of gay Irish groups. Because ‘first come first served’ can be gamed does that mean its unconsitutional?
Whether or not requiring clubs that get college money to accept all students is a wise policy or not is not really the proper thing for the court to consider. The question is does it inhibit the right to free speech or free association? I don’t think it necessarily does, esp. since I view claims to free speech or free association to be funded by other people’s money to require a high burden of proof.
June 29th, 2010 | 3:41 pm | #10
The question is does it inhibit the right to free speech or free association? I don’t think it necessarily does, esp. since I view claims to free speech or free association to be funded by other people’s money to require a high burden of proof.
It does if free association is more than a geographic. It is the reason for meeting which matters, and it matters too much to Hastings. It is viewpoint discrimination because it enforces a rejection of viewpoint dominance within a free association.
BTW,
Conservatives use the term “activism” not to describe the implementation of solutions, but to describe extra-Constitutional remedies. You might do well to choose a different term to communicate your idea better.
esp. since I view claims to free speech or free association to be funded by other people’s money to require a high burden of proof.
And that reflects the same dialectical position from which RBG argued, and with which I differ greatly.
June 29th, 2010 | 4:02 pm | #11
By that standard you bypass any tolerance for group distinctiveness.
True but the customers have a point. If every student is going to be charged a fee to fund 250 different clubs then its not unreasonable that they have the ability to join any of them….just like students can read books in any section of the school library, which they also pay for. Now there may be an argument for allowing exclusive clubs. It might make for a more interesting college life if there were 250 clubs anyone can join and an additional 75 clubs that were exclusive for any number of reasions (religious, political, or ‘secret societies’). But just because that *may* make for a better policy doesn’t mean anyone has a right to it as a matter of Constitutional law.
This is how religious bigotry works when it is disguised. It is the elimination of practical diversity by the enforcement of uniformity.
But such clubs are seeking uniformity in funding. They are seeking to charge every student, Christian or not, gay rights supporting or not, in order to fund themselves yet they seek not to be open to every student. That, IMO, is a contradiction. Look at Wal-Mart versus a Church. Wal-Mart seeks funds from everyone hence it opens it doors to all types of people. A Church, though, knows it seeks support from its members who all share a particular belief. No one gets upset that a Church refuses to consider a Rabbi for the positon of pastor because the Church isn’t asking anything of the Jewish community. Wal-Mart, though, seeks customers from all groups so they implement a neutral policy between them.
To put it another way imagine a Christian club lobbying the library to purchase a vast amount of Christian literature and open a massive new section to house it. Suppose the club also asked the library to limit access only to members the Christian club deemed proper (let’s say some of these books are very rare so limiting access isn’t just a gratitous slap in the face) but turns around and proposes that the funds for this expansion be provided by a universal flat fee on all students. Non-members of the club would be rightly annoyed that they were being made to pay for something that they might have no access too.
Basically when you play with other people’s money you give up some measure of ‘distinctiveness’ and must accept some amount of uniformity.
June 29th, 2010 | 5:17 pm | #12
Basically when you play with other people’s money you give up some measure of ‘distinctiveness’ and must accept some amount of uniformity.
Yup. Same logic used in DC with RC *cooperation* as though co-equal participation somehow equals advantage. This demand-secularism, again, comes from the dialectical approach, which I believe is not only in error, but contrary to Constitutional principles.
Perhaps at a later time I will do a summary of some various perspectives on taxes versus freedom, noting the DC church situation and the Boy Scouts, esp their current Philadelphia situation.
June 29th, 2010 | 10:12 pm | #13
Actually ‘demand secularism’ doesn’t come into it. From my reading of things you are free to create a club whose purpose is to announce Jesus is the Son of God. To get the shared funding, though, you must be open to all students. You can, though, write your bylaws in such a way as to frustrate an attempt to ‘swarm and vote’ the club’s purpose (say by restricting changes to a super-majority, requiring members to be active in the club for at least two years before they can vote etc.).
This regime may not allow you to do certain things that you may want for a club. If you’re the Young Republicans you may not like the idea that in discussing your strategy for the upcoming election there may be Democratic plants in your club. You may think its cool to have a ‘Skull and Bones’ type club with secret members and exclusivity. You can do these things but you just can’t tap student funds to do it. This may or may not be the optimal policy for student funds but I’m not seeing an obvious Constitutional problem with it.
June 30th, 2010 | 6:36 am | #14
We’re still conflating two things I distinguished earlier in the discussion. It’s one thing to restrict leadership and membership. It’s quite another to restrict participation. The argument that all students pay in so all should, if they choose, participate strikes me as reasonable. The conclusion that all students should have an equal shot at membership (if the group has such a meaningful category, which most don’t) or leadership simply doesn’t follow.
As for the takeover argument, it’s certainly true that there are ways to prevent it temporarily if you don’t have democratic means of perpetuating the leadership. But eventually the original members or key leaders will graduate. There’s always the possibility of takeover if the newcomers are so dominant as to be able to prevent the continuance of the group under its current statement of faith. If there are ten leadership spots, four remaining people in the group who hold to the statement of faith, and a majority who deny it, those six remaining spots will go to those who deny it, or else they’ll have to revise their structure. It’s not clear that a leadership dominated by those who endorse the statement of faith can be sure that the next generation will continue the distinctives of the group if they can’t expect leaders to hold to the statement of faith.
June 30th, 2010 | 7:46 am | #15
Jeremy,
I use the term judicial activism because it seems like the idea being presented here is a preferred policy, or a policy some on the right think is better, is being presented as a Constitutional right. It may very well be that requiring student clubs who get student money to be open to all students is not the best policy. Like a better tax rate or better speed limits or the best seatbelt policy, the way to get it is by lobbying for better legislation. Arguing that you’re preferred policy is a Constitutional Right you are entitled too, though, requires a bigger hurdle.
The problem with your criticism of takeover prevention is that it ignores for several years the club will remain true to its original purpose AND it will receive additional funds (I assume funding is based on how many members it has). The gay students sitting thru the Evangelical Club Meetings will not only have to wait a year or two or three (by which time school is already mostly over for them) but they would have to see a club they disagree with getting additional funding to operate for purposes they disagree with. I’m not saying it couldn’t happen but it seems like it would be easier for them to just work on their own club.
Now if no new Evangelical Students join the club you’re right eventually the founders would move on and the new members could vote to change the club’s purpose. But you’re basically describing a world where no students care to join the original club. As such its a defunct club which would lose its funding anyway. As I pointed out there are more tools than just tenure available. The college can limit funding to only the first clubs you join so ‘swarming’ would end up costing the preferred clubs funds and could end up getting the non-preferred clubs additional funds if the ‘swarm and vote’ effort fails.
Likewise the ‘swarm and vote’ tactic can be applied by the minority against the majority. Imagine 80 students who support gay marriage and 20 who don’t. The 80, though, form 8 clubs of ten each, each club trying to be the lead pro-gay marriage club. The twenty who remain can strategically join individual clubs, reverse their vote and then move on to the next club (assuming no limit on how many clubs a student can join). This IMO is just as likely as minority viewpoints are often strongly held while majority views are often loosely held. Intensely felt minorities can hold themselves together with discipline while majorities tend to let themselves be divided against each other.
In sum making all clubs open to all students may create a highly complicated atmosphere where students may subvert clubs by strategically joining them when they really disagree with their aims. Such political jostling may be highly educational or it may be very suboptimal but I don’t see how that raises it from a policy question (in which case I’d let the college have its way and see what the results are) to one where you have a Constitutional Right to assert your own preference.
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