Here's another eye-opener from my friend Bill Saunders, entitled:
What Happened to the First Amendment?
In case you missed it, the Supreme Court turned the old adage, “Save the best for last,” on its head when, on the last day of its term, it announced a decision that is surely one of its worst ever, and one that could prove deadly for religious freedom on campuses.William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.
In the case of Christian Legal Society v Hastings, the Court decided that the Hastings College of Law could deny registration to a student group as a CLS chapter because it required morally upright behavior of its members and adherence to its statement of faith. Pause and consider that. “Conservative” evangelical students – unlike over sixty other associations of students – may not be recognized as an official student group because CLS wants its members to agree with the theory and practice – the raison d’etre – of the group, that is, to be good and proper evangelical Christians.
Can one imagine requiring the “animal rights” group to admit unrepentant, proselytizing fox hunters? While the majority opinion claims one can not only imagine it but that Hastings’ policy actually requires it (under an “accept all comers” policy), the dissent makes short work of that claim. This is not the place to rehearse the whole lay of the land, but suffice to note that no other group has ever been similarly treated by Hastings and that Hastings only announced the existence of this “policy” when it filed its legal brief in the case. Do you smell something fishy? Well, so does the dissent. (“Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming.”)
The votes in the case were divided along now-familiar lines between four “liberals” (the majority in this particular case) and four “conservatives” (the dissent), with Justice Anthony Kennedy the key swing vote between the two (more or less solid) blocs. And this time he swung with the liberals (as he often does in “social issue” cases). The dissent was composed of Clarence Thomas, Antonin Scalia, John Roberts, and Samuel Alito, with Alito writing the dissenting opinion.
The dissent demonstrates that the majority upholds a policy by Hastings that really never existed, but was invented to provide a post hoc justification for the discrimination against CLS that had already taken place. This is clearly shown, for instance, by the fact that the dean with whom the students met, following an initial rejection by the same dean of their application to register, told them nothing about an “all-comers” requirement, but instead objected because their statement of faith was not compliant with Hastings non-discrimination policy that includes, most importantly, sexual orientation.
It’s clear what is going on. The conservative evangelical students were disfavored by Hastings because they disapprove of non-marital sexual activity, including homosexual acts. After all, what could be more offensive in the modern culture, based as it is upon the god of sexual freedom, than such a viewpoint? What could be more “offensive” to the majority of students at a liberal law school (or to the tenured faculty and administration) than those who do not equate any other sexual behavior with that between one man and one woman within the bond of matrimony?
While the majority protested (too much) that this was a “neutral” policy by Hastings, the dissent saw more clearly: “Today’s decision rests on. . .the wrong-headed] principle…[that there is] no freedom of expression [that must be respected if it]…offends prevailing standards of political correctness in our country’s institutions of higher learning.”
Didn’t we have contentious debates about “free speech” on campus during the 1960s and 1970s? Indeed we did, and there is a case from that era that is right on point, Healy v James. That case involved a highly disfavored group, Students for a Democratic Society. When a proposed student chapter refused to disavow violence (as the national SDS refused to do), they were denied registration by a college. In deciding Healy, the Court held this was an impermissible infringement on “association rights” protected by the First Amendment.
What did the majority make of this inconvenient precedent on association rights? As the dissent notes, it ruled, in essence, that “the effects of this discrimination [which are the same in this case as they were in Healy,] were really not so bad. . . .that a little viewpoint discrimination is acceptable…” In layman’s terms, they held the constitutional infringement was not too bad.
This is rather ridiculous on its face. However, it isn’t funny because it shows what entrenched elites, both in colleges and on courts, are up to. They are determined to vanquish their most hated foe, those who adhere to traditional religious points of view, and they will bend, perhaps break, the Constitution to do so. Which is another reason, by the way, to be careful about whom we confirm for the Supreme Court.
Bill's article appeared in today's The Catholic Thing.
I heartily agree with the conservatives on this one. A group with a voluntary membership simply should be able to set it's requirements.
I might find those requirements silly or invasive but I needn't join. What is more I can leave.
This is turning Freedom of Assembly on its head along with Freedom of Speech. I will go to my grave supporting the other guys right to be wrong at the top of his voice.
If the liberals on the bench think this is somehow helping anyone, especially LGBT folks they are sadly mistaken. This will only further entrench the idea that LGBT acceptance is not prevalent or correct but must be imposed by elites.
This 5/4 decision stuff in the SCOTUS is getting out of hand. Perhaps has been out of hand for far too long. The court was never meant to be this political and yet we have allowed it to happen.
How then do we drag the SCOTUS back to impartial judicial actors and not political hacks? Certainly I would not want any president to have the ability to replace them all at a single swipe. It would be dreadful from any standpoint.
Has anyone any ideas of how to restore the co-equality of the branches?
Saunders asks, “What happened to the First Amendment?”
Answer: Nothing. CLS’s First Amendment rights were not violated by Hastings College’s policy or by the Supreme Court’s decision in Hastings’ favor. CLS may continue to discriminate against those who do not agree with its principles, and this is right and proper. Their First Amendment rights of free association, free speech, and free exercise are intact.
What CLS may not do is receive funding or recognition from Hastings College. This is because CLS’s discriminatory membership policies violate the college’s own non-discrimination policy, which withholds recognition from campus groups that seek to exclude people on the basis of religious beliefs or sexual orientation.
The Court’s decision in CLS v. Hastings makes complete sense to me, and I agree with Ruth Bader Ginsberg’s opinion that CLS was seeking preferential exemption from Hastings’ policy. To have decided against Hastings, the court would have needed to show that their non-discrimination policy was unconstitutional, and they couldn’t very well do that without running into problems with the Equal Protection Clause (the 14th Amendment).
Like it or not, state universities have a right—and I would say an obligation—to set and enforce non-discrimination policies. Everyone in the state—Christians, gays, Muslims, Jews, blacks, women, and all the rest—supports state universities with tax dollars. Their children should not have to experience exclusion based on any of these identities. The fact that CLS has now been “excluded” may seem unfair until we remember the reason—i.e., that their policies are exclusionary. This is one of those paradoxes—like being intolerant of intolerance—that we should learn to live with. Exclusion due to violation of a policy is not the same as exclusion because of race, sexual orientation, or religion.
Here’s a parallel that may throw some light on the CLS v Hastings decision:
Brigham Young University makes a distinction between two kinds of academic freedom—one for individual faculty members to “teach and research without interference,” and the other for the institution to “pursue its distinctive mission.” Obviously, these freedoms may sometimes be at odds, so the faculty are subject to what BYU calls “reasonable limitations.” They may not contradict or oppose LDS Church doctrine or policy in public, they may not deride the LDS Church or its leaders, and they must not violate the “honor code.”
Is any of this a violation of faculty’s First Amendment rights? No, of course not. BYU faculty may say what they like about the LDS Church as long as they are prepared to seek employment elsewhere. When they signed their employment contract at BYU, they agreed to certain restrictions on their speech.
This is why CLS’s case against Hastings was without merit. They wanted funding and recognition from Hastings but refused to comply with Hastings’ non-discrimination policy. Hastings said, in essence, “You’re free to associate in whatever way you choose, but not on our dime.” If the Supreme Court had decided against Hastings, every organization in this country, from corporations to churches, might have lost the power to set its own policies. Face it—that power comes from the ones holding the purse strings. In Hastings’ case, it was the taxpayers.
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