Supreme Court and the First Amendment

Tuesday, July 13, 2010

The Supreme Court last month delivered another blow to liberty in finding against the chapter of the Christian Legal Society (CLS) at the University of California, San Francisco (Hastings) Law School. CLS limits membership to those who share its doctrine forbidding sexual relations outside of marriage. The school found this condition violated Hastings' rule forbidding discrimination based on religion and sexual orientation.

Although the school had initially barred the CLS limit due to its "Nondiscrimination Policy," which prevented exclusion only where based on limited grounds (race, religion etc.), the Court instead evaluated the school's revised policy (for this litigation), that campus groups must accept all applicants, and could not exclude for any reason. Under this interpretation, the Democrat club had to accept Republicans, and so on. However, as Justice Alito's dissent observed, even under this "all-comers" policy, groups could exclude those who did not timely pay dues, who skipped meetings, who did not pass skills-based tests, or engaged in "gross misconduct."  

Justice Ginsburg's majority opinion characterized these as neutral rules, which everyone had an opportunity to fulfill. Of course, students with families (and tight schedules), or limited budgets, or weak writing skills, may have had more difficulty fulfilling those standards than students might have in embracing Christian doctrine and avoiding nonmarital relations. In any event, whether such sexual conduct amounted to "gross misconduct" itself evinced a difference of viewpoint, and CLS' view was rejected.

The majority characterized CLS as seeking not equal but special treatment: exemption from the general campus rule. This argument recalls the formal equality notion mocked by Anatole France, who famously observed the law equally forbade both the rich and poor from sleeping under bridges. In other words, a rule forbidding all campus groups from holding Mass would not be neutral, but one that discriminated against Catholics.

CLS had relied on the Court's 2000 decision that allowed the Boy Scouts to exclude atheists and homosexuals, to preserve the clarity of its message. Justice Ginsburg distinguished that case by arguing that involved prohibition, whereas this case involved only the withholding of governmental subsidy; CLS could still meet off-campus, and use noncampus media such as Facebook to communicate. However, in an age where the state can confiscate large sums from taxpayers (all law students were forced to subsidize student clubs), and them spend them to support facilities, denial of such access is not merely the forfeiture of a reward, but the imposition of a penalty.

Under similar circumstances, this point was apparent to the California Supreme Court after World War II. San Diego's ACLU chapter wished to meet after hours in a public school, which was generally available to community groups. The school refused, citing the chapter's unwillingness to renounce the violent overthrow of the government, a position that was as offensive to 1946 San Diegans as support for Christianity and heterosexual marriage are to 2010 San Franciscans. The school did not seek to prevent their speech, but only to refuse "support" through the provision of a meeting room.

The Court nevertheless found the First Amendment protected the ACLU's speech. "It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable." If the state could not prohibit the speech, it could not inhibit it by forcing it off-campus. The Hastings case, however, suggests the state may now use its economic leverage to favor some perspectives over others.

It is possible that the effect of the decision will be limited. The Court did affirm the all-comers policy (not the Nondiscrimination Policy), and thus the decision could reach only those atypical environments where Democrat clubs are forced to accept Republicans, pro-life groups must accept abortion supporters, etc. The Court also emphasized the unique characteristics of the law school setting, although it seems likely that this limitation could be eroded over time.

Perhaps the most hopeful sign is that CLS attracted many allies that did not share its beliefs. A group of homosexuals filed a brief in support of CLS, notwithstanding their disagreement with its substantive viewpoint, because they recognized the important of First Amendment freedom for all, especially those in the political minority. Similarly, the liberal Los Angeles Times editorialized against such campus "equality" rules; by forcing the acceptance of divergent views within organizations, it prevents the emergence of diversity among groups, as all will endorse the majoritarian viewpoint. In other words, the effect of this case will be shaped by future battles, both in court and public opinion.