Wednesday, June 30, 2010
I was very disappointed by the decision in the CLS case. (Disclosure: I submitted an amicus brief in support of CLS.) Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters. I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled. For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc. I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).
Steve S. says that the case is "insignificant" (and I hope he turns out to be right). But, I read the case differently than he does. Let's put aside the (to me, troubling) possibility that the Court majority over-emphasized a mid-litigation "stipulation", and overlooked the fact that it is more accurate to say that the CLS was singled out for special approval than subjected to a neutral and general "all comers" policy. Steve says "[t]he Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court)." The Court *did* hold that Hastings can discriminate against "religious organizations that believe that being a religious organization means, among other things, taking religion seriously regarding membership and leadership."
As Steve notes, much of the disagreement comes down to disagreement about the "reasonableness" of the policy (given that it does, in any case, burden the associational freedom of groups). In this context, the factors that make a policy "reasonable" need to be weightier than "we could imagine someone thinking that factor was a good idea." In my view, the "all comers" policy actually is not reasonable; it advances no weighty interest very far, and those plausible interests it promotes are actually not promoted enough to justify the burdens imposed.