The CLS dissent: Justice Alito claims center stage

Everything about the CLS decision was smothered in the msm this week by the Court's decisions on the Second Amendment and the "honest services" fraud law (and of course the Kagan hearings); coverage of the dissent really got lost. But followers of lgbt law should pay attention to it, and not just because the dissenters fell only one vote short of a majority. Here are three other reasons:

• Together with his apparently reluctant concurrence in Doe v. Reed, Justice Alito's opinion in CLS marks him as Justice Scalia's reliable wing man for negative intensity regarding lgbt issues;
• The dynamic relationship between identity and viewpoint has become the heart of lgbt-related constitutional discourse; and
• The positioning of social conservatives as an unpopular minority at risk of suppression produces their strongest arguments, both morally and legally, a precise inversion of the "moral majority" atmosphere of the 1980s, when they argued that AIDS was God's retribution against homosexuals.

Alito's the Man

Everyone expected that Justice Alito would be a reliable conservative vote on the Court, but no one knew how vehement he would be.  Now we know.  At least when it comes to lgbt issues, he's vehement.

And his sympathetic boss has taken notice. There could be many reasons why Chief Justice Roberts selected him to write the opinion of the four dissenters - here are two possibilities: to give him the ball and thus the opportunity for leadership in a field that he seems to care about quite a deal, and to give Justice Scalia some relief time on the bench, a break from being the only Justice who writes ripper dissents in these cases, a role he played in Lawrence and Romer.

The bad news is that Scalia Jr. has arrived.  The best news is that Justice Alito and Justice Kennedy disagree.

Viewpoint [v.] [and] [<-->] Identity

In the bad old days when Hardwick was still good law, lgbt rights lawyers
labored mightily at a pretty impossible task: trying to convince courts that there was a constitutionally significant distinction between the sexual conduct that gay people engaged in and their identity as gay (which I mean here to encompass lesbian and bisexual). When Lawrence was decided, especially because of its weaving together of privacy and equality language, that distinction bit the dust. To paraphrase Justice Kennedy, the distinction was incorrect when it was articulated and it is incorrect today.

But the conundrum of how to classify "gay identity" - a compound of expression, conduct, and belief as to the moral worth of honest sexuality - has not gone away nor gotten much easier, so long as one has to operate within the boxes of legal doctrine. The classification question doesn't matter much in life, but it can be decisive in law. If you flip the perspective to opposition to gay rights, you get the same conundrum from the opposite side. Are "anti-gay advocates" opposed to sexual conduct between two men or two women; or to pro-gay speech; or not to either but to the idea that homosexuality and heterosexuality are morally equivalent? Does it matter in life? Should it matter in law?

Justice Alito's opinion places CLS squarely in the third camp, and argues that unless CLS gets an exemption from the non-discrimination policy, its own right to express and argue for its beliefs will be violated. One rejoinder from the majority is that the non-discrimination policy prohibits the conduct of exclusion by a group receiving a form of public benefit, rather than the expression of belief. There are plausible arguments in support of both of these framings, and the difference between them is, at bottom, what created the 5-4 split among the Justices.

Which of these two conflicting minorities is entitled to the protection of the state?

Justice Alito gave voice to the cri d'coeur of CLS, which is that under the Hastings policy, gays get to be everywhere and we don't get to have our own safe space. Of course CLS could not be shut down because of their anti-gay views, nor could CLS be forced across the board to admit people who disagree with those views. Both of those actions by the state are, happily, inconceivable under the First Amendment. But does CLS get to exclude who it wants to and to participate in the Hastings system of recognized student organizations?

I phrased this third section's question as "entitled" because that word conveys both the issue of entitlement under the law and the more normative inflection conveyed by the same word. This decision, like any case before the Court, is about law; and Justice Alito begins his opinion by invoking the great mantle of the First Amendment's freedom to express "the thought that we hate." (The phrase comes from an opinion by Justice Holmes 81 years ago.) One of the reasons that strong First Amendment protections are often unpopular is because they serve to protect the expression of ideas that are widely (and often properly) vilified. (Think Nazis marching in Skokie.)

Almost the only victories in gay rights cases in the early stages of the movement were grounded in precisely this principle - judges, like everyone else, thought the idea of homosexuals expressing pride was virtually a joke, but the First Amendment saved us again and again. Now conservative Christians are seeking that same protection as an unpopular (in the context of Hastings) minority, as they have every right to do. And with that explicit legal claim comes their silent corollary claim for the moral high ground as the persecuted minority.

++++

I side with the majority in this case: I think that the Hastings model of an all-comers policy is constitutionally permissible.  Whether that is the choice that I would make if I were running a law school is another question.

Comments

[Mark G.]

I believe the strongest language from the majority that supports lgbt rights was contained in Justice Ginsburg re-affirmation of Lawrence v Texas and her rebuttal of the CLS's comments that they had nothing against lgbt indiviudals. It is their sexual conduct that is offensive, which is just another way of saying: hate the sin but love the sinner. She said the law makes no such distinction. That laws targeted at conduct that is so bound up with the status that is works to create a class that then is discriminated against is unconstitutional. This to me is a wink and nod toward full lgbt rights. She in one fell swoop; affirmed Lawrence and Romer; and then said "gays" are a class; and deserve protection, regardless of how you try to hide the discrimination.