Wednesday, June 30, 2010
Much of the disagreement between Steve and Rick on the CLS decision seems to ride on how burdened CLS is by Hastings's 'all comers' policy. Per the 1A doctrine so far as I understand it, that is altogether fitting once it is established that the the all comers policy is viewpoint-neutral -- a question I'm probably not fit at this point to address, though I'll close below with a brief remark on this question.
Back to the burdens, then, Rick suggests that those placed upon CLS by Hastings are weighty. In contrast, Steve's enumeration of those benefits that Hastings confers upon RSOs on the one hand, and on CLS on the other, encourages a conclusion that what ever burdening is occurring here -- specifically, the difference between the two just-named sets -- is de minimis. Perhaps, then, we might do well to zero-in on this 'burdens' question for a bit in our attempt to assess the Court's decision. Who has the burdens here right, Steve or Rick?
Here's a brief observation of my own on this score, FWIW:
So far as I can tell, the one burden that CLS definitely faces post-Hastings is loss of the public university's imprimatur and a trifling amount of funding. Less clear, I gather, is whether it loses more than this in the form of formally or practically denied access to facilities and physical space at the school.
Hastings has apparently avered that such access remains as it was prior to CLS's seeking exemption from the school's non-discrimination policy. Justice Alito in dissent, for his part, makes heavy weather of one incident, in which the school administrator from whom permission to make use of a patio was sought did not reply to the request until after the date that the access was needed. He effectively suggests that the tardiness in question is now Hastings's policy vis a vis CLS. (See first paragraph of page 15 of Slip Opin dissent.) Relatedly, he effectively cites the school's advising its CLS chapter that subsequent requests should be made through a lawyer as another indicator of access-denial.
What Justice Alito does not note, surprisingly, is that the mentioned tardiness and advisement both occurred just after CLS had filed suit against the school. I wonder, then, whether there is any additional, more substantial basis on which Justice Alito grounds the suggestion that CLS lacks access even to physical space and facilities at Hastings. Any thoughts or observations on this score from anyone?
One thing I am struck by in comparing Justice Ginsburg's opinion, Justice Stevens's concurrence, and Justice Alito's dissent is how starkly different the imputed motives are that they infer from the parties' deeds leading up to the litigation. I find it tempting at least provisionally to conjecture that Justice Alito's elision, from the one early incident of tardiness in response to a 2004 request, to a still ongoing policy of denying CLS access to physical facilities, is partly the product of his suspicions about Hastings officials' motives. Justice Alito of course gives expression to these suspicions with abandon in much of his dissent, which is significantly more skeptical of the viewpoint-neutrality of Hastings's all comers policy than are the majority opinion and concurrence. Methinks then that he might be interpreting the 2004 tardiness incident he cites pursuant to a 'hermeneutic of suspicion.' But again, I dunno. Any thoughts?
A final point: I mentioned above that I'm probably not adequately cognizant of the 1A doctrine to opine confidently on the matter of viewpoint-neutrality here. I am tempted to wonder, however, whether disagreement on this score might ultimately be rooted in continuing disagreement over the degree to which sexual orientation is an ineluctible attribute. For I doubt that anyone along the mainstream segment of the 'left/right' continuum would find any objectionable viewpoint-non-neutrality in a public institution's refusal to fund or endorse student organizations requiring that members take an oath not to wed people of ethnicities other than their own. (A 'Bob Jones Society,' as it were, seeking SRO status at a public university.) And my guess is that many who find discrimination on the basis of sexual orientation to be invidious view sexual orientation as bearing more in common with ethnicity than with mores. Again, any thoughts?