For us, this Supreme Court decision is not about law and Supreme Court decisionmaking the way it should be. Rather, it is more about "political correctness" masquerading as law.
One might have presumed that the correct Constitutional doctrine in this case would be (this is NOT what the court held, by the way) that one can not bar non-heterosexuals from a student organization if status as a heterosexual is irrelevant to the purposes of the association, but an organization should be able to bar non-heterosexuals where status as a heterosexual is part of the stated religious belief of that organization, which is free to believe what it wishes. Celebrating one's own heterosexuality in a freely formed if limited and selective religious association is not discrimination against those whose sexual predilections are otherwise and who can congregate in their own groups if they wish.
But Hastings Law School and 5 Justices on the Supreme Court saw the matter differently in a decision which we -- as political centrists -- view as a travesty of Constitutional Law decisionmaking.
By common wisdom, the association of people in organizations is a fundamental right. Any organization is "selective" by nature, given the purposes for which an organization is created.
A University itself, for example, selects which students to admit and which not, and has a system of evaluation for deciding who will be able to obtain "membership" in their select elite. The Supreme Court diversity case in fact sanctioned a forced artificial selectivity in college admissions based on race -- the opposite result of that here in terms of discriminatory logic. Selectivity is the basis of all human organization and is an essential element of the freedom of association. All of us choose our own company.
Religions especially have developed various practices and rites over the millennia to admit members into their ranks, i.e. into THEIR elite group. These practices of selective admission are so well known that we need not list them here.
The CLS Case thus involved not only the right to freedom of association, but also the freedom of religion, both of which are established paramount primary rights in the U.S. legal system.
Over the course of history of the American nation, an additional right has developed, the right not to be discriminated against unlawfully. Anti-discrimination did not replace the freedom of association or the freedom of religion. Rather, this new modern right -- hence its political correctness -- has become a right of limitation on other rights.
The key term is here is "unlawful discrimination". We can not easily prohibit anyone from being selective of their company in their personal and group activities, but we can equalize behavior in the public sphere, and that is the purpose of anti-discrimination laws and regulations. To the degree possible, we try to level the field -- fairly -- in the public world. But even there, not all "selectivity" is unlawful discrimination, and it is only the latter that the governments can regulate, to serve "compelling government interests". There are no such interests here -- only the extreme, "politically correct" position of Hastings Law School.
What compelling State interest exists to permit universities to demand that all student organizations dispense with ANY selectivity, regardless of the purpose of their organization, in favor of an "all comers" policy?
We have seen no such compelling State interest identified anywhere, nor does such exist, except in the dogmatic political correctness of supporters of an "all comers" policy.
In the instant case, the Court majority -- in our opinion -- has confused organizational "selectivity" with "unlawful" discrimination, which is a horse of an entirely different color. Not all selection is unlawful discrimination. Nor can every association be forced to accept someone else's sexual predilections. Quite the contrary, that is a very personal, to some, even religious thing.
CLS is a nationwide Christian student group, which, as written in the Court's majority opinion, requires its members and officers:
"[T]o sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles.... Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.” ... CLS also excludes students who hold religious convictions different from those in the Statement of Faith."We see nothing wrong with that requirement. CLS is defining its organization and is limiting the membership in their organization to those who believe as they do. This is the essence of most groups, including religious groups, in affiliating with like-minded humans.
Did the CLS heterosexual view of the world conflict with the prevailing political correctness on this subject at Hastings Law School (or the personal predilections of the administrator(s)? Something funny was at work at any rate in this case, as Hastings Law School administrators challenged this bylaw and refused to register the student organization, even though numerous other student organizations with limiting bylaws had been registered in the past, without question. CLS was the first organization for which registration at Hastings Law School was denied, indeed, by a sudden "all comers" policy proclaimed by the Hastings Law School Dean in 2005, apparently as a result of and in the course of the proceedings in this case. The policy was never documented on paper.
What should the Supreme Court have properly held? The proper role of the Supreme Court of the United States in cases such as these -- in our opinion -- is to draw a sensible working balance between all conflicting rights.
In the instant case, however, the majority -- in a disastrously bad opinion written by Justice Ginsburg, supported through equally bad concurring opinions written by Justice Stevens and Justice Kennedy -- chose to support an absurd "all comers policy" at Hastings Law School requiring all law school registered student organizations to accept all comers as members (and indeed eventually as officers and policy makers), even if this meant that organizations could be subverted from within e.g. by Muslims joining Jewish organizations (or vice-versa), Democratic and Republican student political party groups being forced to accept members of other political parties, etc., just to take a few possible examples.
Worse, the majority opinion chose not to consider clear evidence that the "all comers policy" was not viewpoint neutral but was in fact merely a recently constructed artificial front to cover up discriminatory treatment of student organizations within Hasting University's separate general Non-Discriminatory Policy. As Justice Alito wrote in a dissent subscribed to by Chief Justice Roberts and Justices Scalia and Thomas:
"[T]he record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints....We definitely agree with Alito.
The accept-all-comers policy is antithetical to the design of the [Hastings] RSO forum for the same reason that a state-imposed accept-all-comers policy would violate the First Amendment rights of private groups if applied off campus. As explained above, a group’s First Amendment right of expressive association is burdened by the “forced inclusion” of members whose presence would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Dale, 530 U. S., at 648. The Court has therefore held that the government may not compel a group that engages in “expressive association” to admit such a member unless the government has a compelling interest, “‘unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’” Ibid. (quoting Roberts, 468 U. S., at 623)....
I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country."
We certainly think that the CLS majority decision is a candidate for the worst SCOTUS opinion of the year. This is not law as it is supposed to be in the sense of true Constitutional interpretation -- this is elevating "politically correct thinking" in marginal social areas such as "gay rights" to the status of major factors in Constitutional Law. And that is wrong.
The CLS case is a jurisprudential disaster and contributes to the progressively lower respect that we have for the U.S. Supreme Court, which we increasingly view as a political, rather than independent jurisprudential body of the wise.
See also our previous postings at:
Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: : Supreme Court of the United States
The Bizarre Case of Christian Legal Society versus Martinez (Hastings Law School) : Oral Arguments on Monday, April 19, 2010