Saturday, July 03, 2010

Christian Legal Society Case Ends in Bizarre 5-4 U.S. Supreme Court Decision upholding "All Comers" Association Membership Requirement as Constitutional

The bizarre Christian Legal Society case against Hastings Law School ("the CLS Case") -- about which we already posted twice before at LawPundit (see the links below) -- ended at the U.S. Supreme Court as bizarrely as it started with a legally horrendous clearly wrong 5-4 decision on a fundamental Constitutional doctrine about which there should actually be no legitimate dispute.

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....

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 definitely agree with Alito.

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

US Legal History : New Previously Unpublished Materials re James Madison, by Law Prof Mary Sarah Bilder of Boston College, at Law and History Review

Cambridge Journals - Press release
Release Date: 06/23/2010
Country of Issue: New York, NY, USA

Law student Madison rediscovered through lost law notes

The unearthing of law notes made by a young James Madison sheds new light on the shaping of the mind of the great man.

Rediscovered by Mary Sarah Bilder, Professor of Law at Boston College, the 39 sewn-together pages of notes on common law cases were found among the papers of Thomas Jefferson at the Library of Congress.

Long thought to be Jefferson’s notes, Bilder’s painstaking study of the handwriting, style of language, summarising technique, paper watermarks and numbering system has led her to conclude that the notes were in fact Madison’s.

Bilder’s account of the discovery, and what it reveals about Madison, is published in the latest edition of America's leading legal history journal, Law and History Review, published on behalf of the American Society for Legal History by Cambridge University Press. Bilder contends that the law notes demand a reassessment of Madison who, unlike other important early national leaders such as John Adams, Thomas Jefferson and John Marshall, had been thought to have had little interest in law beyond some desultory early studies.

The notes cover a wide range of topics including criminal law, the make-up of courts, elections, how to accurately measure time and even sex and relationships.

The error of assuming the notes were made by Jefferson is not surprising, writes Bilder, as the two men’s handwriting was very similar: “Late in life, Madison successfully ‘faked’ Jefferson’s handwriting in altering a letter....and the two men exchanged numerous letters.”

Provenance is also supportive of Madison’s authorship of the notes, which came to the Library of Congress in 1931 from Mary M. McGuire of New York City, grandchild of James C. McGuire, the administrator of the Dolley Payne Madison estate and the largest collector of Madison manuscripts.

In revealing something of the ‘mind of Madison’ Bilder admits that there is disappointment for any reader, “looking for a protoconstitutional mind”. But she does find a foreshadowing of the Fifth Amendment in Madison’s notes on a case of an indictment for treason: “you shall not ask a witness or a juror any question yt wd make a man discover what tends to his shame, crime, infamy or misdemeanor.” He also made notes on cases relating to Habeas Corpus, legislatures and elections.

Many of the notes relate to Madison’s contemporary concerns during his work in the Virginia legislature, including the possible make-up of court systems. He avoided anything that was not relevant to post-revolutionary America such as uniquely English forms of property law.

The private Madison also emerges from the notes as he appears to seek enlightenment on matters in his personal situation. As an eldest son, he would become his father’s executor and the two lengthiest notes involve the settling of estates. Given his dependence on the Virginia legislature for a living, he was, not surprisingly, interested in cases about salaries for various offices.

That the Notes have survived at all Bilder describes as ‘serendipitous’, for, at the end of his life, Madison destroyed many of his papers. She argues that the restoration of the notes to the authorship of Madison reveals the inaccuracy of the long-held view that he had little interest in law: “These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison’s significant grasp of law.

The private and publicly irrelevant character of the Notes offer an uncensored glimpse of Madison’s mind.”

Madison also made a surprising number of notes on cases relating to sex and relationships. Perhaps recalling erstwhile love, Kitty Floyd, who broke off their engagement, he made notes on breaches of promise to marry. He also made notes on cases involving cohabitation and seemed particularly interested in bastards. Bilder concludes wryly: “What motivated his fascination with the subject has to remain purely speculative.”

David B. Mattern, Research Professor and Senior Associate Editor of the Papers of James Madison at the University of Virginia, refers to the research as "a remarkable feat of detective work".

To read the entire article free of charge, please go to


Notes for Editors:

For further information, please contact Hannah Gregory on +44(0)1223 325544 or email

About the author

Mary Sarah Bilder is Professor of Law at Boston College and is also a Michael and Helen Lee Distinguished Scholar. The Lee Scholars program supports the research of select senior faculty members over a five-year term.

About the Law and History Review (LHR)

LHR, America's leading legal history journal, is published by Cambridge University Press on behalf of the American Society for Legal History. The Journal encompasses American, European, and ancient legal history issues. Its purpose is to further research in the fields of the social history of law and the history of legal ideas and institutions. LHR features articles, essays, commentaries by international authorities, and reviews of important books on legal history. The journal is edited by David Tanenhaus, University of Nevada, Las Vegas.

Find out more at :

About American Society for Legal History

The American Society for Legal History, founded in 1956, is a nonprofit membership organization dedicated to fostering scholarship, teaching, and study concerning the law and institutions of all legal systems, both Anglo-American and those that do not operate in the Anglo-American tradition.

For more information, go to

About Cambridge Journals

Cambridge University Press publishes over 230 peer-reviewed academic journals across a wide spread of subject areas, in print and online. Many of these journals are the leading academic publications in their fields and together they form one of the most valuable and comprehensive bodies of research available today.

For further information about Cambridge Journals, go to

About Cambridge University Press

Cambridge University Press is the publishing business of the University of Cambridge, one of the world’s leading research institutions. It is the oldest publisher and printer in the world, having been operating continuously since 1584.

Throughout its history, the Press has maintained a reputation for innovation and enterprise, through publishing the latest research, and through supporting the latest methodologies for teaching and learning. Its purpose is to advance learning, knowledge and research worldwide. It publishes 240 journals and over 2,500 books annually for distribution in nearly every country in the world.

CongressDaily - Kagan's Punch Lines Put A Charge In Confirmation Hearing

CongressDaily - Kagan's Punch Lines Put A Charge In Confirmation Hearing

Bilski patent ruling will increase costs of doing business, says expert | Pinsent Masons LLP

Bilski patent ruling will increase costs of doing business, says expert | Pinsent Masons LLP

The ISandIS Network

Our Websites and Blogs: 3D Printing and More 99 is not 100 Aabecis AK Photo Blog Ancient Egypt Weblog Ancient Signs (the book) Ancient World Blog Anthropomorphic Design Archaeology Travel Photos (blog) Archaeology Travel Photos (Flickr) Archaeo Pundit Arts Pundit Astrology and Birth Baltic Coachman Bible Pundit Biotechnology Pundit Book Pundit Chronology of the Ancient World Computer Pundit DVD Pundit Easter Island Script Echolat Einstein’s Voice Energy Environment and Climate Blog Etruscan Bronze Liver of Piacenza EU Laws EU Legal EU Pundit FaceBook Pundit Gadget Pundit Garden Pundit Golf Pundit Google Pundit Gourmet Pundit Hand Proof HousePundit Human Migrations Idea Pundit Illyrian Language Indus Valley Script Infinity One : The Secret of the First Disk (the game) Jostandis Journal Pundit Kaulins Genealogy Blog Kaulinsium Kiel & Kieler Latvian Blog Law Pundit Blog LexiLine Group Lexiline Journal Library Pundit Lingwhizt LinkedIn Literary Pundit Magnifichess Make it Music Maps and Cartography Megalithic World Megaliths Blog) Minoan Culture Mutatis Mutandis Nanotech Pundit Nostratic Languages Official Pundit Phaistos Disc Pharaonic Hieroglyphs Photo Blog of the World Pinterest Prehistoric Art Pundit Private Wealth Blog PunditMania Quanticalian Quick to Travel Quill Pundit Road Pundit Shelfari SlideShare (akaulins) Sport Pundit Star Pundit Stars Stones and Scholars (blog) Stars Stones and Scholars (book) Stonehenge Pundit The Enchanted Glass Twitter Pundit UbiquitousPundit Vision of Change VoicePundit WatchPundit Wine Pundit Word Pundit xistmz YahooPundit zistmz