Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators. First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:
The Supreme Court just granted cert in Christian Legal Society v. Martinez. At the broadest level, the case presents a recurring and fundamentally
unsolvable dilemma of liberalism: Must liberals tolerate even the
intolerant? In more mundane terms, the case poses the question of
whether a public institution--here UC Hastings Law School--can apply
its non-discrimination policy to deny official recognition (and thus
eligibility for funding) to the Christian Legal Society (CLS) on the
ground that the latter interprets its charter to forbid membership by
any person who advocates or "unrepentantly engages in" "a sexually
immoral lifestyle," an exclusion that would bar openly (and
"urepentantly") gay law students from membership in the CLS.
Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise. Excerpted from Writ:
...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale,
the Court invalidated efforts by Massachusetts and New Jersey,
respectively, to bar discrimination on the basis of sexual orientation
by parade organizers and the Boy Scouts, again respectively....
...[T]he key to these rulings is that, in both Hurley and Dale, the
Supreme Court thought that the private group's message would be
undermined by the forced inclusion of persons whose very presence was
inconsistent with that message. Significantly, Hurley was a
unanimous decision:The liberals, no less than the conservatives,
thought that the organizers of a private parade, who were engaging in
an inherently expressive activity, should be able to decide whether the
inclusion of openly gay marchers would undermine the message of the
parade.
Dale, to be sure, was not unanimous. But the
key point of the dissent simply underscores the distinction at issue:
The dissenters thought that the Boy Scouts of America did not have a
clearly-articulated message that would be undermined by having an
openly gay troop leader. ...
In other words, it
seems that the Court, at the time of these decisions, generally agreed
that if inclusion would directly undermine a clear, specific message
sent by an expressive organization, then forcing inclusion would
presumptively violate the First Amendment right of association.
CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were
told by the State of New Jersey that they simply had to admit gay
members and troop leaders. By contrast, Hastings is not exercising that
kind of regulatory authority over CLS. Hastings does nothing to
stop individual law students enrolled at Hastings from getting together
for meetings. All that Hastings does is deny official recognition to
such groups of law students, if they are not open to all would-be
members.
Accordingly, Hastings argues that this case is nothing like Hurley and Dale.
The law school is not telling private organizations to admit anyone; it
is only telling private organizations that want official
recognition--and the eligibility for funding that comes with it--that
they need to accept all interested students as members. It is
well-established constitutional law that the government cannot suppress
the speech of groups devoted to non-violent advocacy of racism, sexism
or homophobia. But, Hastings says, it does not have to subsidize
the activities of organizations that, in their admissions policies,
discriminate on the basis of race, sex, or sexual orientation. It will
tolerate such discriminatory speech, Hastings says, but it is not
obligated to pay the bill for it.
In response, however, CLS
can point to another line of cases involving so-called "public fora."
These cases say that where the government opens up public property for
speech, it cannot discriminate among speakers.
The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia.
There, the Court struck down a University of Virginia ("UVA") policy
under which the university funded most student publications but not
those that were religious in nature. Having created a forum for speech
(as the Court called it, "more in a metaphysical than a spatial or
geographic sense"), UVA was not permitted to discriminate among the
viewpoints of those entitled to speak in that forum....
CLS argues that its case is just like Rosenberger,
in that it is being denied access to the benefits of official
recognition, including funding, based on the religious viewpoint it
espouses. But there is at least one important distinction: Unlike the
restrictions in Rosenberger ..., the
trigger for the Hastings policy has nothing to do with the expression
of a religious viewpoint, or with expression at all. Hastings would
recognize CLS--even with a message that can reasonably be said to be
homophobic--if only CLS would accept all students as members.
Who has the better of that argument? As I read the precedents, Hastings
should prevail. However, there is enough wiggle room in the doctrine
for the Justices to rule for CLS. For example, the Court could say that
regulation of the membership of an expressive association is inherently
a regulation of the association's expression, and that where the
regulation takes the form of a requirement of inclusion, it is
inherently hostile to a message that says certain forms of behavior are
sufficiently immoral to warrant exclusion.
After the jump, the argument for a compromise outcome -->
Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit
Court of Appeals, now a professor at Stanford and one of the nation's
leading conservative legal scholars - responds to Dorf, who then
replies.
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