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June 28, 2010

The Court gets it wrong on "discrimination", diversity, and speech

The Court handed down its opinion in the Christian Legal Society case this morning.  By a 5-4 vote, the Court upheld a rule requiring officially recognized student groups at Hastings College of the Law to "accept all comers" as members and leaders.  As Justice Alito explains in his dissent, this rule is not the rule that was actually applied to the Christian Legal Society when it was denied official recognition for insisting that its members and leaders affirm a Christian statement of belief.  Instead, this "accept all comers" rule -- which, even if it were in fact the rule, would be a very silly rule -- seems to have been seized upon in order to make less apparent the extent to which Hastings was singling out the Christian Legal Society, its views, and the views of other such groups, for special disapproval.  (Justice Stevens' concurring opinion is more candid in expressing this disapproval.)

The opinion and outcome is, I think, deeply disappointing.  (Note:  I filed, with Tom Berg, an amicus brief in the case.)  Like Justice Alito, "I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country."  What is particularly unsettling, even ominous, is that the Court -- and Justice Kennedy in his concurring opinion -- seems entirely unable to understand (or perhaps simply does not believe) that it is not invidious, and it is not contrary to dialogue, diversity, education, etc., for associations to act in accord with a shared, distinctive ethos.

Posted by Rick Garnett on June 28, 2010 at 11:43 AM | Permalink

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Rick- I've not read (or even skimmed) the opinions yet, but want to ask you something on this. You've long pushed the idea that there ought to be a diversity of institution types, each allowed to seek the good as it finds best. Why isn't this decision just an example of that? I don't think anyone argued that the rule Hastings argued for was _required_ of all state schools, let alone all schools. So, why isn't the moral that, if one wants to have a club limited in the way the Christian Law students wanted their club to be limited, they should attend a different school? You might say that this is drawing the diversity line in the wrong place- that it should be draw at the level of clubs and not of universities or law schools, but I think it will be hard to give a principled reason for that. And, given that point, it seems plausible to me that we can see this ruling as upholding the "diversity of institutions" point you elsewhere support, rather than opposing it. I'd be interested to hear why you think this isn't the case, beyond just the fact that you don't like the decision made by the institution in this particular case, of course.

Posted by: Matt | Jun 28, 2010 12:24:29 PM

Rick- I've not read (or even skimmed) the opinions yet, but want to ask you something on this. You've long pushed the idea that there ought to be a diversity of institution types, each allowed to seek the good as it finds best. Why isn't this decision just an example of that? I don't think anyone argued that the rule Hastings argued for was _required_ of all state schools, let alone all schools. So, why isn't the moral that, if one wants to have a club limited in the way the Christian Law students wanted their club to be limited, they should attend a different school? You might say that this is drawing the diversity line in the wrong place- that it should be draw at the level of clubs and not of universities or law schools, but I think it will be hard to give a principled reason for that. And, given that point, it seems plausible to me that we can see this ruling as upholding the "diversity of institutions" point you elsewhere support, rather than opposing it. I'd be interested to hear why you think this isn't the case, beyond just the fact that you don't like the decision made by the institution in this particular case, of course.

Posted by: Matt | Jun 28, 2010 12:24:29 PM

My least favorite lines of all the opinions, but ones which are particularly powerful sorts of totalistic justifications in religion clause jurisprudence generally: "Regardless of whether they are the product of secular or spiritual feeling, hateful or benign motives, all acts of religious discrimination are equally covered. The discriminator's beliefs are simply irrelevant . . . . The policy's religion clause was plainly meant to promote, not to undermine, religious freedom." Stevens, J., concurring.

There you have it: the very meaning of religious liberty under the Constitution boiled down with one fell swoop to the single value of facial, formal neutrality -- a value which has no time either for the history of the particular conflict or the nature of the claims being asserted.

Dreadful.

Posted by: Marc DeGirolami | Jun 28, 2010 12:32:22 PM

Hi Matt,

Thanks for writing. I would oppose as misguided, but would certainly not criticize as unconstitutional or illegal, a private university's decision to impose an "accept all comers" rule -- and perhaps even the *real* Hastings non-discrimination rule -- in the service of that university's (for lack of a better word) "liberal" ethos. I *do* think (obviously!) that a university should be able to constitute itself around a particular ethos, and to act in accord with that ethos. (Of course, even private universities are subject -- for better or worse -- to all kinds of regulations and funding-strings that constrain their ability to do this. Think of the way that the AALS harasses law schools!) But, Hastings is the government and while I do not believe that "viewpoint neutrality" by government is ever *really* possible, I do not think the government should be able to, under the guise of a formally "neutral" policy, single out for disadvantageous treatment groups that form around a religious ethos. Now, that said, let's imagine that Hastings was, say, Yale. Then, it *could* do this, but it should not pretend it is being "neutral."

Posted by: Rick Garnett | Jun 28, 2010 12:37:25 PM

Rich:

Although the cases are different, it would interesting to compare the Bob Jones case with this. Both cases involved financial support and did not include criminal conduct.

In BJU, you had no complaints by any harmed individuals. Just the IRS taking it upon itself to withdraw BJU's tax-exempt status because it banned interracial dating--a private activity--among its students and faculty. The argument on the part of the Court--I believe it was Burger--is that as a matter of public policy the withdrawal of tax-exempt status was consistent with the state's interest in eliminating racial discrimination. Fair enough.

But now in Martinez, you have individuals who claimed to be harmed (CLS) who filed a complaint. (So, unlike BJU, there are real plaintiffs). In Martinez, the Court permits a state actor (remember, BJU was a private actor) to deny financial support to a religious group simply because the group would like its leadership to share its moral and theological vision. In BJU, the Court permits a state actor, the IRS, to withdraw financial support to a religious academic institution because the school does not enforce the government's understanding of racial equality. However, the CLS is in some ways like the interracial couple, for, like BJU, Hastings is telling its students with whom they may associate on a matter of deep personal significance. But unlike the ban on private racial discrimination--which is merely statutory--religious liberty is embedded in the Constitution's Bill of Rights. Is Hastings the IRS or BJU in this analogy? If it is the IRS, then CLS is Bob Jones. But if Hastings is Bob Jones, then CLS is an interracial couple. Or maybe I'm just out to lunch.

Posted by: Francis Beckwith | Jun 28, 2010 1:25:08 PM

Rick- a question about the nature of the rule at Hastings. I don't know what the actual rule was, or if they had a consistent one. But, as a legal matter, hadn't it been stipulated by the parties at the trail level as to what the rule at Hastings was? And isn't this the rule that the court, rightly it seems, considered? And given that the CLS agreed to that stipulation, wouldn't it have been odd, to say the least, to let them change their minds at this point? The other points I'll have to think more on, but I'm skeptical of them.

Posted by: Matt | Jun 28, 2010 2:13:34 PM

Matt -- I don't mean to jump on what was a question for Rick, and I hope he disagrees if what I offer seems off, but based on J. Alito's opinion, it seems that there were three different rules (or maybe three different interpretations of the same rule). The stipulation was as to the interpretation of Hastings' policy as of December 2005 (the "all comers" interpretation of the Nondiscrimination Policy). Justice Alito makes it sound as if the stipulation only represents agreement as to what was the school's interpretation of the policy at that point in time. CLS was denied access in 2004, and the parties did not stipulate that the all-comers policy existed in 2004.

I have not the first idea whether this is, factually, a fair reading of the stipulation, but Justice Alito's opinion makes it seem as though CLS was aiming at a shifting target -- different interpretations for different legal situations.

Posted by: Marc DeGirolami | Jun 28, 2010 2:51:10 PM

That may be, Marc- I haven't read the opinion. But that's not how it seemed from the oral arguments, where the other justices seemed to think the CLS was trying to pull a fast one on the stipulation, and were extremely skeptical of their arguments. McConnell's replies were, to say the best, pretty weak in the arguments, much like, "well, if we agree with the stipulation, we lose the case, but we shouldn't lose the case, so we should ignore what my clients stipulated to." Or so it seemed when I read the oral arguments.

Posted by: Matt | Jun 29, 2010 7:27:43 AM

Matt, I think we've got a factual dispute going on here -- and I know that I am not in a good position to judge from among competing factual interpretations.

Justice Ginsburg certainly gives short shrift to the niceties of the stipulation and its meaning, perhaps suggesting that it's obvious to everybody what it meant. But she does nothing, so far as I could see, to rebut the procedural background recounted by Justice Alito. See in particular in Alito's opinion where he points out that the law school's answer (as well as various statements in Dean Kane's deposition) are not consistent with the "all comers" interpretation of the policy advanced by the school in December 2005 (and notice that the school made efforts to ensure that other student organizations at the law school which were not in the least in compliance with an "all comers" policy all of a sudden start complying with it), which again was different from the interpretation of the Nondiscrimination Policy advanced by the school before the Court.

Again, I just don't know which is the more accurate or believable factual account. But it seems to me that Justice Alito's description of the terms of the stipulation as being confined to the period around December 2005 is plausible given the other procedural details he recounts. Parenthetically, if Justice Alito's description of the way that the law school went about interpreting the policy is accurate, it would not be fair to hold CLS to a single interpretation of the policy for the whole course of the litigation, where the law school actually had adopted three. Of course, there may be other interpretations of all of this background which render CLS's position less plausible.

Posted by: Marc DeGirolami | Jun 29, 2010 8:12:46 AM

You're definitely out to lunch Francis, even Scalia wouldn't buy that analogy. First off both cases have to do with an entity discriminating against others. Neither deals with the loss of any "rights" freedom of speech or assembly. Receiving state funding, whether as tax-exempt status or through state funding for student groups, is a privilege. If you want state money, you have to abide by the state's rules. Here the state entity's rules were "don't discriminate against race, sex, national origin, disability, sexual orientation or religion." In Hastings 100 years, the only group that chose to discriminate against other students was not the Muslim or Jewish student group, but the Christian group (I'm sure Jesus would be deeply ashamed). CLS chose to discriminate so they lost the money.

If you were giving someone money from your pocket under a conditional rule, my bet is if the person broke the rule you'd stop giving them money.

CLS and your religious group still have the right to discriminate against others based on religion, sexual orientation and race - but they certainly have no right to receive public assistance for it.

And btw, its fascinating how you say "their perception of racial equality" as if this was 1961. Its amazing to see how difficult it is for a zebra to change its stripes, THAT is truly dreadful.

Posted by: max | Jul 1, 2010 4:34:10 AM

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