Last Week's Other Big Supreme Court Decision

Church-state relations were changed last Monday by the Supreme Court, though nobody yet knows exactly how. Depending on whom you ask, the Supreme Court's decision on Monday on CLS v. Martinez, in which a Christian student group was shunned by a public law school for the sin of requiring its voting members to consent to a basic statement of faith, may be "reason to celebrate" for "every woman, every minority [and] everyone who has been discriminated against" (as Marci Hamilton says) or "a serious setback for freedom of expression in this country" (as Justice Alito wrote in his dissent). 

What exactly the case signifies, then, is disputed. That it is significant is not. The case could have profound consequences for the relationship between church and state. If you believe that religious groups should be able to set their own terms of membership and should be able to require that people of their own faith lead their own groups, without suffering punishment at the hands of the state, then you should care about this case.

First, the background. In 2004, the Hastings School of the Law, a part of the University of California system and thus a public institution, refused to recognize the Christian Legal Society because it transgressed the school's non-discrimination policy. While all students were welcome to attend meetings, the members -- who would shape the identity and future of the group -- had to affirm basic Christian beliefs and strive to live accordingly. 

They were informed by Hastings that this requirement constituted discrimination against non-Christians and homosexuals. Non-Christians could not become members, and those who rejected an orthodox Christian ideal of sexuality and marriage could not become members, either. This kind of exclusivity, of course, is anathema to liberal sensibilities. Hastings claimed that the CLS bylaws violated their written non-discrimination policy for student organizations, so CLS would no longer be officially recognized and would no longer have access to the funds and facilities every other student group had. 

The core question of CLS v. Martinez is this: Can an organ of the state grant benefits to liberal religious groups (as well as every other student group) that it withholds from more traditional ones whose policies are not politically correct? After the litigation process began, in 2005, Hastings also put forth an "accept-all-comers" policy for all recognized student organizations: Every group must open its membership to every student. I explain the complex history and logic of the case here. It would seem like a ludicrous policy: Blacks cannot exclude white supremacists from taking over their student organization, and a pro-choice group cannot exclude pro-lifers from becoming members and wresting away voting control. Yet ludicrous policies are not necessarily unconstitutional, and a 5-4 majority of the Supreme Court judged that the all-comers policy is not unconstitutional in theory. Now the case goes back to the Ninth Circuit to determine whether the all-comers policy was applied selectively in order to single out the CLS. 

The ruling was narrowly focused. The question is how broadly it will be interpreted and applied at universities (and potentially other state institutions) around the country.

Many religious groups structure their membership and leadership according to their religious beliefs. It is a part of their faith to form communities of shared belief that are led by men and women of faith and integrity. One way to put the question is this: Does an all-comers policy, as Alito argued in the dissent, effectively discriminate against conservative religious groups which believe, as a matter of faith, that they must be led by people of the same faith? And can the state incentivize the religious beliefs it prefers and disincentivize those it loathes by withholding the common resources of civil life from religious groups that refuse to toe the line?

It should be made clear that this is not about money. This is not about access to a paltry amount of student activities fees. It is about the ability to compete in the marketplace of ideas on an equal plane, without being shunted out of the marketplace for believing something that those in power find unappealing.

Patheos has assembled some fascinating interviews that show how the battle has just begun to shape the way in which this case and its consequences are understood.  Follow the links to learn more:

Michael McConnell, a constitutional law expert who argued the case for the CLS before the Supreme Court, says, 

Nation wide, a number of universities are going to look at this and see whether it's going to be a way to shut down organizations that they don't want to put up with. That means there will be litigation all over the country.

Marci Hamilton, a liberal expert in First Amendment law, sings the praises of the majority ruling:

The Supreme Court said that government can enforce an anti-discrimination rule. Every woman, every minority, homosexuals, everyone who is discriminated against, has a reason to celebrate. So that's a good chunk of our society.

What you're talking about is the spin being given to the case by Michael McConnell ... I will not accept that somehow liberty is being suppressed just because religious groups cannot get money from a university. That is a real distortion.

And this interview with David French, senior counsel for the Alliance Defense Fund, which argued the case alongside the Christian Legal Society, goes most deeply into the nuances of the case:

The university is saying that you cannot be an equal participant in the marketplace of ideas...We know from long and bitter experience that universities will take a mile if you give them an inch. They will read this as a blanket endorsement of policies that restrict ... virtually any disfavored groups with ... politically incorrect views.

Some conservative commentators, like Eugene Volokh, have agreed with the liberal justices in this case, and essentially suggest that there is no threat here to religious liberty. After performing these interviews, however, I assessed the case myself and explained why there is indeed cause for concern. 

The detrimental consequences of the case will depend on three factors: (1) how broadly the case is construed, and specifically whether it is taken to legitimize policies (at public universities and other state institutions) that prevent religious groups from "discriminating" on the basis of religious belief; (2) how many universities or other state organizations decide to require all-comers policies, and how many decide it is too costly politically and pragmatically; and (3) whether this represents "judicial drift" toward the view that the state can withhold common benefits and resources from those whose religious beliefs are regarded as exclusionary and backward. I conclude:

If common religious beliefs are counted as discriminatory, and the state is viewed as having a legitimate interest in suppressing such discrimination, then religious groups may still be permitted to believe what they want to believe, but not without large-scale government manipulation that rewards the beliefs that are favored and punishes the beliefs that are disfavored by those in power. The consequences would obviously be profound. Could high school Bible studies be denied on-campus meeting spaces because they do not permit non-Christians to lead the studies? Could churches that do not ordain women or homosexuals be denied tax-exempt status, because the state is "subsidizing discrimination"? Many have already argued as much.

This may sound like hyperbole, and presently the political resistance to such a state of affairs would be significant. But such is the nature of slippery slopes: the change is not extreme, until it is. It would be better if the government did not get in the business of incentivizing some religious beliefs and punishing others in the first place.

You can read my entire assessment here. And if you wish to decide for yourself, consult the SCOTUS blog Wiki or see the responses and collections of links put together by Hastings and the Christian Legal Society
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