Today, the Supreme Court decided Hastings Christian Fellowship v. Martinez, ruling that the Christian Legal Society (CLS) at Hastings College of Law does not have the right to be a Recognized Student Organization (RSO) because it did not want to admit members who were not Christian or were gay, something at odds with CLS's interpretation of Christianity.
While I am deeply sympathetic to the sensibilities of the parties involved in the case, and realize that any outcome would be hurtful to one group or another, I'm not sympathetic to the Supreme Court's majority opinion in the case. In fact, the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.
The reason is that the case hinges on the interpretation of forum status. In short, a forum is created when the government sets aside some property for some people (either the public at large or a subset thereof) to speak. For better or for worse, this is the standard that has been applied to funding for student groups on public campuses, even where the funding originates in student fees.
Given the use of forum status in this context, the Court's ruling basically amounted to an examination of the following question: does the First Amendment, and its attendant rights of free speech and free association, permit a college to require a group to admit members that offend its religious ideology as a condition of access to limited public forum resources?
The Court, upholding the Ninth Circuit's ruling, found that yes, a college can require groups to admit members despite the groups' rights to free speech and free association. In the course of doing so, it made some peculiar statements along the way--statements that could well come back to haunt those who would assert a constitutional right to access campus resources held open for students in general.
Own a computer, lose some rights
Astonishingly, the Court takes the position that the school should be given more deference to deny CLS access to limited public forum funds because the internet exists.
The Law School's policy is all the more creditworthy in view of the "substantial alternative channels that remain open for [CLS-student] communication to take place." [...]In this case, Hastings offered CLS access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events. Although CLS could not take advantage of RSO-specific methods of communication[...], the advent of electronic media and social-networking sites reduces the importance of those channels.
Slip op. at 24 (citations and footnotes omitted). This is a fallacy of logic that most second-year law students are cautioned against making: you cannot avoid liability for the wrong you do by showing all the wrong you can't do.
Saying that you have a lesser right to speech as a law-school recognized organization because you have the right to be an independent organization is like saying students of a certain race don't have a right to use the lunch counter because they can go eat sandwiches in the street and lots of other places. The existence of places where rights aren't being violated can't be held up to defend the violation of rights occurring somewhere else.
As worrying as this standard is, it becomes even more worrying when you extrapolate the rule to other free expression cases. Under this rationale, if you have access to a computer, you give up a section of your First Amendment rights on government property, because, hey, you can go use your computer.
I can't believe this is what the Court intends, but it's what the Court said.
Survival is the same as speech
The majority draws an even more impermissible inference immediately thereafter in the opinion, where it asserts that the ability of the group to survive despite not receiving RSO status means that its rights were not meaningfully violated.
Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation. Based on the record before us, CLS was similarly situated: It hosted a variety of activities the year after Hastings denied it recognition, and the number of students attending those meetings and events doubled.
Slip op. at 25 (citation omitted). But whether the group grows or not has nothing to do with whether its rights were violated. Christianity grew in Rome even as Christians were being fed to the lions for sport; I would nevertheless assert that being devoured constituted a dramatic infringement on the civil rights of those ingested (and of the Christian community as a whole).
Similarly, the Court makes a grievous error of logic and law when it reasons that growing membership is evidence that the group was not harmed by denial of RSO status. That the school's limitations on recruiting failed to exterminate the group is not evidence of the validity of the restrictions any more than the survival of Falun Gong members despite China's persecution is evidence that China hasn't violated anyone's rights.
The hybrid speech/association test: it's alive!
In another passage, Ginsburg attempts to explain why, when the CLS has raised claims under both their right to speech in a limited public forum (where restrictions really only have to be reasonable) and its right to association (where restrictions face a strict level of scrutiny), the Court will only apply the speech test. Ginsburg engages in the following rhetorical contortion:
When these intertwined rights arise in exactly the same context, it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association.
Slip op. at 14. Let me restate that in plain English: Ginsburg is saying that when your free speech concerns arise in the context of a free association claim, you're only entitled to the lighter speech analysis.
This is not a bad rationale, mostly because it is not a rationale at all--it is an assertion, divorced from any legal reasoning. I could just as easily, and with far more legal support, say that it makes no sense for a restriction that should be struck down for violating the right of association to be revived for being inoffensive to forum status.
Ginsburg resolves the tension by deciding that CLS is really asserting a hybrid speech/association right, and that a hybrid speech/association right need only pass the test for speech restrictions. In other words, unable to craft a rationale that could make this restriction possibly survive the test protecting the right of association, the majority essentially decides to make a hybrid right of speech/association--Frankenginsburg's Monster--that the restriction can satisfy.
The majority's work here is like a boxing promoter with a glass-jawed champion; when they don't like the constitutional opponent their reasoning has to face, they create a new opponent out of whole cloth. It just doesn't happen to be one that actually exists in American law.
That said, I'm sure Hastings' policy does pass the hybrid speech/association test. It should, since the standard was invented on the spot for the purpose of permitting Hastings' restriction to survive constitutional scrutiny.
Hard cases make bad law
I don't purport to know what the "best" outcome would be here--I don't know that the right of gay students to participate in a religious organization is any greater than the right of a religious organization to determine who it wants to admit. There's no way to decide this case without hurting someone.
What I do know is that it helps no one to assert that public colleges can limit the constitutional rights of students whenever they can rephrase their desire to exclude viewpoints as a desire to include individuals. A college with a different ideological basis could just as easily require all groups that discuss sexuality to include members that oppose alternative lifestyles, and the outcome would be just as counterproductive. And granting recognition of a religious student group that excludes alternative lifestyles would probably be followed by the creation of a religious student group that includes those lifestyles, and the groups would co-exist in the marketplace of ideas without forcing anyone to do anything.
But what happens with this case is less worrying than what the rationales in this opinion do to student expression rights as a whole. It seems that the Court views the First Amendment rights of citizens as inviolable, unless those citizens are students, in which case those rights can be diminished whenever there's a sufficiently palatable political agenda to force-feed them.
Students and prisoners are the only two groups with diminished First Amendment rights, and man, today, there's a lot of inmates thanking their lucky stars that they aren't in college.
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John W. Whitehead: Doing Away with the Right to Be Different: The Assault on Religious Freedom
While the cultural landscape has changed greatly since the founding of the country, one thing must not: America should still stand for freedom and pluralism. What this demands is an equal voice for all viewpoints.
I definitely agree with the verdict, but I do see these flaws with the rationale.
I don't think that any government funding should go to organizations that discriminate in any way, however.
But thanks for posting anyway.
The issue considered by the SCOTUS in the Christian Legal Society v Martinez was, “Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.”
“Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.” Despite benefiting from public funds, the CLS, stipulates that its voting “members and officers must affirm its Statement of Faith.” This faith statement demands that members abstain from “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.” This restriction essentially serves as a “loyalty oath” or a “poll-tax” engineered by an organization at a public university to exclude Gay persons from its ranks – even those who are legally married in California. The CLS did not seek “parity with other organizations, but a preferential exemption from Hastings’ policy.”
Mr. Goldstein muses upon the “dramatic infringement on the civil rights” of ancient Roman Christians. Yes, many suffered the ultimate disenfranchisement from the dominant society. He fails to see the irony in supporting the CLS’s intentional exclusion of LGBT people; the formerly oppressed Christian minority has mutated into the dominant oppressor-class.
But the short version is that a neutral rule can still be targeted at a group. Epstein a pointed example: "Historically, the rules in the old South that allowed individuals after the Civil War to vote only if their grandfathers did were neutral and targeted only black citizens."
Other than that, I think it's only worth mentioning that CLS is clearly a minority, inasmuch as they practice a type of Christianity that excludes people. Whether Christians are an oppressor-class, well, I'm not really sure. They feed me pretty regularly and the beatings have slowed substantially.
"the Court takes the position that the school should be given more deference to deny CLS access to limited public forum funds because the internet exists."
No it doesn't. You are oversimplifying. The court said that, when access barriers are viewpoint neutral, the availability of other means to express first amendment rights is ONE FACTOR to be considered in evaluating the burden. And their statements were backed up by precedent, so it is not a "fallacy of logic" to apply the facts to the precedent.
Here is another poor argument:
"Similarly, the Court makes a grievous error of logic and law when it reasons that growing membership is evidence that the group was not harmed by denial of RSO status."
You have got to be kidding. The issue is whether CLS was harmed by denial of RSO status, and you are saying the fact that their membership doubled is not evidence relevant to that issue? Hhmm, is a group whose membership doubled more likely or less likely to have been harmed? I am not saying it is DISPOSITIVE of the issue, but not even relevant? Thats ridiculous.
The fact is, whether you like it or not, the existing precedent says that whether alternative channels exist IS a relevant consideration when access barriers are viewpoint neutral.
The cases the court is citing (re: access barriers) are about PHYSICAL fora--for example, if you want to protest a political convention on Main Street, and you get denied, they ask if there's reasonable alternatives--say, the other three streets surrounding the convention center. There's a limited number of alternatives, so this is sort of like a reasonableness test.
The application of forum doctrine when it comes to student speech is about something non-physical--money, support, access to lists, that kind of thing. If you ask whether there are other alternatives in the case of non-physical fora, the exception swallows the rule--NOTHING could EVER be found to be a forum, because there are ALWAYS reasonable alternatives. Second-best alternatives, alternatives that don't give you a level ideological playing field, but alternatives.
The upshot is, students never have a right to anything that's a forum, because there's always another medium, so forum analysis becomes useless. And whether you like it or not, no case about student access fora has EVER applied this doctrine for this specific reason.
The other argument you don't seem to be getting is that you can't point to a doubling in membership as evidence they weren't harmed. How do you they wouldn't have quadrupled in membership, or grown tenfold in membership?
In Cornelius, the court held that when a charity was excluded from the federal literature to solicit donations, direct mail and in person solicition were relevant alternative channels. Similarly, when CLS was denied access to a campus newsletter to advertise its group, the court considered alternative channels like social networking cites that it could use to advertise its group.
So Cornelius proves you exactly wrong. Since alternative channels are clearly relevant to non-physical forums, I challenge you to produce a citation that says alternative channels are not relevant to student speech cases.
As for this:
"The other argument you don't seem to be getting is that you can't point to a doubling in membership as evidence they weren't harmed. How do you they wouldn't have quadrupled in membership, or grown tenfold in membership?"
I am afraid you are the one who doesn't get it. Evidence does not need to be 100% dispositive of an issue to be relevant. How do you think businesses calculate things like lost profits? They look at things like historical trends, despite the fact that such trends cannot predict future profits with 100% accuracy.
I do find it a bit ironic that CLS, a self-identified discriminatory group, is suing essentially because they are now being discriminated against. It should be noted that if CLS were to cast aside their fear of usurpation, and drop their written discriminatory policy ("Statement of Faith") thereby allowing "all comers" to join, the College would have no reason for prohibiting their status. Further, the faiths of the individual members would not be comprised and they could all continue discriminating, just not as a College-recognized & funded group.
I think it would have served the court better to ask: does a college have the right to withhold funding/recognition/resources to a group on the basis that said group would use these resources to promote a discriminatory agenda and actively discriminate against fellow students?
Wouldn't it have been much easier to say LGBT students have a fundamental right to attend?
For all the cheering for the outcome, people are missing the point that the result wasn't, "Yes, you have rights," but, "These people have slightly fewer rights than you do." Cheering for that makes me uncomfortable, particularly when the outcome was balanced on nothing more than the occasion to have two more ideological allies than the other side.
Perhaps the biggest evidence of that is that you can use the exact same rationale to reach the opposite conclusion. I mean, if LBGT students own computers and would stay politically active without attending CLS meetings, you can say the school only has to have a legitimate goal to exclude them, and diversity of opinion on campus is a legitimate goal.
That makes me nervous. The result here walks a path that makes it easier to strip students of fundamental rights and people are lining the parade route, cheering.
There are dozens of special-interest organizations recognized by the college I attend, and by the university as a whole: Pro-choice, Pro-life, Christian, Islamic, Jewish, Native American, and LGBT to name just a few. The common denominator is that any student can join any of these groups, participate in all activities, vote, and run for office. CLS chose to discriminate fellow students on the basis of religious and sexual orientation; they even went so far as to exclude hetersexual students whom engage in extra-martial sex. Don't forget CLS was seeking special exemption from the university's nondiscrimination policy. Contrary your assertion, the result was in fact "Yes, you have rights" (the right to forum, just as everyone else), but not "You can have more rights than others" (i.e.: an exemption - the right to use college money/resources AND discriminate against fellow students).
I don't understand what you mean here. First, how would excluding LGBT students further the interest of diversity of opinion. Second, the school wouldn't be the one excluding them, CLS would be. Third, the school did not single out CLS for exclusion, as you are suggesting the school could do to LGBT students.
I think a better comparison would be that, if an LGBT group had a "no straights" policy, the school could properly deny their group recognition under this opinion. And I am fine with that.
But that said, the rule isn't that "no one can exclude anyone from membership." Lots of people can exclude people from membership, and the opinion goes into that. It was just the specific restrictions on protected civil rights classes, which led to an odd situation because the group in question is organized around a protected civil rights class.
Which has really nothing to do with the outcome of the case. We can't just say, "oh, I like the result, therefore the reasoning must be right." Because sometimes, it's wrong, and it does things like this.
The First Amendment guarantees the government won't interfere in your exercise or free speech. It does not guarantee government will provide you with the platform or venue of your choice or in any other way assist you in your speech.
In particular it does not force those you choose to discriminate against to help finance your speech which is exactly what you propose.
Just as the government is barred from any activity which may be seen as promoting any one religion because doing so would have an undeniable chilling affect on other religions regardless of intentions. The government promoting or assisting, in any way, organizations promoting discrimination or hate would mean the government promoting discrimination.
Disingenuous rationalizations attempting to equate constitutional prohibitions on governmental interference with nonexistent constitutional rights to government assistance don't just attempt to negate the law, they attempt to invert it.
The court is quite right in asserting that the Internet is available for any speech you choose. The fact that you'd prefer prime-time network coverage, the south lawn of the White House, or your campus student center is not the government's concern. The fact that no-one may hear your message otherwise is not the government's concern.
The first amendment exists to prevent minority disenfranchisement through abuse of governmental powers not to require government assistance in attempted minority disenfranchisements.
But that's not really the point. The point seems to be you like the outcome of the case.
That's fine; I don't have particularly strong feelings on the outcome. I think it's a close one.
What I object to is how, to reach this outcome, the majority takes existing law, presses it against a cheese grater, and rubs back and forth until they skin their knuckles.
You can't just decide the outcome of the case you want and tack it on to the existing body of law and think it's going to work. If we let passion for equality overwhelm our obligation to create rules that fit into a larger body of law, we will end up with a society that admits everyone, but that nobody wants to join.
Our laws and legal system are a means to an end, not the end in and of themselves.
The founders and the constitution attempted to create a justice system based on the rule of law. Deciding the outcome of a case based on the facts at had, even if that requires "tacking it on to the existing law" is what we have judges for, and how you arrive at justice. There is no "obligation to create rules that fit the larger body of law."
The Citizen United decision was legally "justified" by expanding on the "precedent" of Corporate "constitutional rights" even though the "precedent" is widely acknowledged as a clerical error. Insisting on adherence to the letter of the law is a bad joke, nothing is more arbitrary, amorphous, inconsistent, and irrational than our larger body of law.
If your not interested in the purposes underlying laws, the principles underlying our constitution, or the desire for justice underlying our legal system don't bother trying to sell the Ponzi scheme that's our "larger body of law."
That "larger body of law" got its authority from people exercising their "inalienable rights" to discard the "larger body of law" when it became unfair, unresponsive and unjust in 1776.
1. State rights--California has the right to grant more rights than the First Amendment and it's chosen to grant those rights to people who want to join groups rather than those who would organize them.
2. Constitutional privacy--taken as a whole, we can no longer tolerate discrimination against sexual orientation and find that sexual orientation is an implicitly protected class. (This is probably the most intellectually honest way to do it...)
3. Non-forum status--that the restrictions placed on the program mean it is not a forum *at all*, and that the student groups are really engaging in sanctioned school speech, because the restrictions are so great that the school never intended to create a forum.
While all of these have minor shortcomings, ANY of them is preferable to the path the court took. If we get so partisan that we really stop caring whether the law makes any sense, we are getting too dumb to be governed as a democracy.
My position is that the abuse and over reliance on precedent is poisoning our whole legal system. We don't expect precedents to be 100% on point but we'll act as if they were. And the error induced by slightly off-point precedents to slightly off-point precedents leads routinely leads to decisions in direct opposition to the intent of laws, but in line with "precedent."
That's acceptable to lawyers but not to me. I expect more from judges than managing trials and following precedent, I expect them to dispense justice, to judge. Precedents are guidelines not the law. We don't elect representatives to vote out precedents.
Your concerned with a smoothly administered legal system. I'm fine with that, as long as it doesn't interfere with dispensing justice. Where lawyers and I part company is in the belief that a smoothly functioning legal system is more important than dispensing justice.