Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 28, 2010

Christian Legal Society v. Martinez

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?


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Stevens' message: religion is safe when its adherents do not believe, or act as if, their religion is true. Ironically, then, Stevens "excludes" religious belief from that which is epistemologically serious. (No one, for example, would fault the American Historical Association for excluding Holocaust deniers. So, historians can exclude but not theologians? Why not? Because, if I may interpret Stevens, "religion can't be knowledge.") Passive aggressive exclusion is still exclusion.

Posted by: Francis Beckwith | Jun 28, 2010 3:49:53 PM

Did you read the case? CLS wanted state funding. Before you get all high and mighty about the school forcing CLS to accept Gentiles (Jesus never had a problem with it), you SHOULD realize Hastings' policy requires no such thing. CLS may continue to preach intolerance or post flyers or burn crosses or whatever it is they want to do. They have full freedom of speech and assembly. There is no "right" to receive state funding for speech and assembly (does excessive entanglement ring a bell?).

Posted by: amy | Jul 1, 2010 4:19:54 AM

Someone writes: "CLS wanted state funding...They have full freedom of speech and assembly. There is no "right" to receive state funding for speech and assembly."

The "state funding" (actually, a portion of student activity fees, rather than tax money) was made available to all registered student organizations (RSOs).

CLS claimed it should be registered, like other groups, despite its refusal to accept "All Comers" for both full membership and officership. With registration, it would get the subsidy.

The school claimed CLS had a choice: either (A) accept "All Comers" fully and be an RSO, or (B) forego the subsidy.

How far does this logic go? Can Bastings College, a public college in PolCor Mass, say "We offer tuition subsidies, special and liberal student loans, free textbooks and free peer tutoring to our students. To qualify, all you have to do is agree to the following pledge:

1. I will not, during my time here, belong to any group, on campus or off campus, that imposes any type of belief-requirements (social, political, religious, moral or otherwise) on its members, nor will I attend any meetings of, or otherwise participate in, such a group.

2. I will not advocate that anyone, student or otherwise, join or belong to such a group.

3. If I become aware of any subsidized student violating 1. or 2 above, I will report that student to the college authorities.

4. If I violate this policy I must repay the value of any subsidy I have received."

If that is not legal under the Court's logic, why is that so?

Posted by: Pete | Jul 1, 2010 3:29:31 PM