Today the Supreme Court released its opinion in Christian Legal Society v. Martinez. If you have heard about this case from the press or from an advocacy group and are concerned about it, I’d encourage you to read the entire opinion as well as the concurrence and dissent. The whole package is ugly, I think. It seems that the principles of freedom of expression, association and religion have been mired in a Dickensian procedural swamp, which was either created by the majority or conveniently used by the majority to bypass the big issues presented by the case. I urge interested readers to peruse the entire 75 pages of all the opinions, so that you may experience for yourself how a question of important Constitutional moment can be drowned in the turgid waters of civil procedure.
The majority opinion, written by Justice Ginsberg, holds that U.C. Hastings’ “all comers” policy was content-neutral and reasonably related to the school’s policy of promoting a diverse forum for student activities. The all comers policy stated that approved student organizations must admit any student to membership or eligibility for leadership, regardless of the student’s status or beliefs. A pro-choice group, then, would have to admit pro-choice students, a Democrat club would have to admit Republicans, the Christian Legal Society would have to admit non-Christians or people who do not live according to the CLS’ views on sexual ethics, and so on.
Indeed, the all comers policy does seem content-neutral as Justice Ginsberg describes it. On its face, the all comers policy itself seems silly and unworkable — it essentially would require that no student organization can stand for anything other than the principle that it is good to encourage diverse viewpoints — but not unconstitutional.
In contrast, the dissent, written by Justice Alito and joined by Justices Roberts, Scalia and Thomas, goes into great detail about the factual circumstances of Hastings’ adoption of the all comers policy. In short, according to Justice Alito, the all comers policy was “adopted” as a litigation strategy late in the game. The policy really at issue, Hastings’ “Nondiscrimination Policy,” only prohibited discrimination based on a select few protected categories — race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. Enforcement of the Nondiscrimination Policy against groups, such as CLS, that discriminate in one of these categories on the basis of religious beliefs raises a very difficult Constitutional question: do the freedoms of religion, speech and association mean that the government must accommodate religious groups that discriminate based on categories such as sexual orientation?
In a previous post, I summarized the issues in the case, and expressed my view that the whole thing was an unfortunate manifestation of ongoing confusion by Christians about the relationship between American government and Christian faith. In his dissent, Justice Alito expresses disappointment with the majority and suggests that the majority’s opinion is “a serious setback for freedom of expression in this country.” He might be right, but maybe not for the reasons he expresses. In one sense, I’m glad the majority found a way to avoid deciding the more difficult issues presented by the Nondiscrimination Policy. There is a hard tension between citizenship in the Church and citizenship in a liberal (meaning classically liberal) pluralistic democracy. I don’t think it’s a tension that we in the Church should want to press up against so hard. Sometimes, the wiser course for the life and mission of the ekklesia is to maintain a faithful witness without suing for full government recognition of all our rights.