Monday, June 28, 2010
I share Rick’s disappointment in today’s Martinez decision. Four quick points about the reasoning employed by Justices Ginsburg (for the majority) and Stevens (concurring):
First, has the Supreme Court ever had a gift that has kept on giving like Lawrence v. Texas? At oral argument, Michael McConnell argued (on behalf of CLS) that while a group could properly be prohibited from discriminating based on status, prohibiting discrimination based on belief unduly compromises a group’s ability to foster any sort of coherent identity. The Martinez majority rejected the feasibility of this distinction as posing a “dauting” task for a university to monitor, and then relied on the Lawrence Court’s statement that “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” A religious student group’s right to participate in the life of the university may seem to raise starkly different considerations than the state’s power to criminalize sexual conduct engaged in primarily by a certain category of individuals, but apparently the status-belief distinction is no longer viable in either category.
Second, the majority noted that the law school’s (alleged) “all comers” policy could be a reasonable expression of the school’s desire to encourage tolerance, cooperation, and learning among students. Fair enough. But, the majority added, to the extent that the policy “sometimes produces discord,” the law school can reasonably include among its goals for the policy “the development of conflict-resolution skills, toleration, and readiness to find common ground.” The message to CLS: “you nutty evangelicals have the opportunity to learn tolerance and cooperation by admitting all students, even those who defy your group’s animating beliefs; if you find that this policy creates discord, you have the opportunity to learn conflict-resolution skills.” Obviously, the same skill sets could be equally in play with a policy that permitted groups to pursue their own chosen beliefs, with significantly less fallout for associational freedom and expression.
Third, Justice Stevens, in his concurring opinion, notes that “the policy may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths.” (emphasis added) Note what this phrasing communicates about the Justice’s mindset. I’ve never met a CLS member or leader who desired “to exclude students of particular faiths.” The point, for CLS and every other religious group of which I have been a part, is to engage in the mutual formation and expression of truths held in common. A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.” The exclusion is a consequence – and usually a consequence that is neither celebrated nor trumpeted – of a commitment to meaningful inclusion.
Finally, the Court emphasizes that the reader should not confuse the advisability of the law school’s policy with its permissibility. That seems to be the next challenge – how can we help expand our public discourse about “discrimination” to include a recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it’s a right best left unexercised?