A Dangerous Precedent

Liberty and equality are the two foundational principles of this
nation: the Declaration of Independence mentions, among its
"self-evident truths," that all men are created equal and that
liberty is one of their inalienable rights. But are these two
principles sometimes at odds with each other? Conservatives and
libertarians have long cautioned that the modern-day liberal
conception of equality would ultimately undermine if not destroy
liberty. While these warnings may seem alarmist, a new ruling from
the Supreme Court may lend them some credence and set a dangerous
precedent in sacrificing freedom for equality's sake.

The case, Christian Legal Society v. Hastings, involves
a small Christian group at Hastings College of Law, a part of the
California State University system. In 2004, the college refused to
register the CLS chapter as an official student organization
because, its officers were told, its bylaws are in violation of the
college's non-discrimination policy—specifically, its religion and
sexual orientation clauses. Each member is required to sign a
"Statement of Faith" affirming belief in a number of Christian
tenets, including the Bible as "the inspired Word of God." In
accordance with the organization’s national policy, the bylaws also
state that "unrepentant participation in or advocacy of a sexually
immoral lifestyle"—that is, any sexual conduct outside heterosexual
marriage—can be a disqualification from membership.

The CLS sued, accusing the college of religious discrimination
and arguing that non-religious campus groups—for instance, ones
based on political affiliation—were allowed to limit their
membership to people "dedicated to their organization's ideals and
beliefs," while the CLS was prohibited from doing the same. Shortly
afterward, college officials began to articulate a new policy:
every registered student organization had extend full membership to
any student who was willing to pay dues, attend meetings, and
behave civilly toward other members.

Even leaving aside the principle of free association, the policy
seems rather absurd on its face. Do the College Republicans have to
welcome Democrats as members, and vice versa? Does a feminist
student group have to admit people who openly believe that men are
divinely ordained to rule over women, and to allow them to vote on
issues related to the group’s activities and
policies? Formally, according to Hastings College, the answer
is yes. In a 5-4 ruling this week, the Supreme Court sided
with the college.

In a stinging dissent, Justice Samuel Alito accused the majority
of ignoring the salient facts of the case—such as the fact that the
Hastings "all comers" policy seems to have been specifically
tailored to exclude CLS. The policy had never been mentioned prior
to the group's lawsuit, and indeed college administrators had
previously acknowledged that non-religious groups were allowed to
include a student's viewpoints in their membership criteria.
Moreover, the CLS remains the only campus group to have been denied
registration.

The majority opinion, penned by Justice Ruth Bader Ginsburg,
also downplays the policy's negative consequences for the campus
CLS chapter—which has continued to function without official
recognition but has been denied not only funding but the use of
various campus facilities. Thus, the ruling suggests that lack of
access to campus resources is sufficiently offset by the existence
and scope of social networking online. As Alito put it, "This
Court does not customarily brush aside a claim of unlawful
discrimination with the observation that the effects of the
discrimination were really not so bad."

The majority glibly dismisses some of the concerns raised by the
plaintiff—for instance, that under the "all comers" policy, a
student group might be intentionally taken over by people who
oppose its original mission. Ginsburg even suggests that law
students have too much dignity and maturity to stoop to such
tactics. Considering the glee with which "progressive" students
have sometimes shouted down speakers they consider racist, sexist,
or homophobic, it's fair to suspect that quite a few of them would
see such a "hostile takeover" as a hilariously creative way to
combat bigotry.

Some strong advocates of free speech, including UCLA law
professor Eugene Volokh—a noted legal scholar of a
libertarian/conservative bent—have voiced approval of the Supreme
Court's ruling. Volokh argues that while we are entitled to our
constitutional rights such as freedom of association, we are not
entitled to have these rights subsidized, and that the college was
therefore on firm legal ground in withholding recognition and
subsidies from CLS, whether under an "all comers" policy or under a
more straightforward non-discrimination one. In his view, religious
discrimination can be rightly treated as more unfair and "socially
corrosive" than discrimination based on other viewpoints. Yet
surely, there is a difference between excluding Jews or Muslims
from, say, a campus athletic club and excluding them from a
Christian group. It has long been recognized that protections
against religious discrimination do not apply to those activities
to which a person's faith is central.

As for the issue of public subsidies, Justice Alito stresses
that the CLS was effectively barred even from activities that would
not have imposed any extra costs on the college—such as setting up
a table at a campus fair.

Moreover, the question of public subsidies may have far-reaching
implications beyond college campuses. A city could argue that any
group which benefits from municipal services such as police and
fire protection or even electricity is "publicly subsidized," or
that public parks should be off-limits to groups whose policies are
deemed discriminatory.

Writer Wendy Kaminer, a noted civil libertarian—and a liberal
feminist whose beliefs could not be further away from those of the
CLS—seems on firm ground when she argues that what's really at
stake here is trampling on a group whose beliefs are highly
unpopular in its social environment. How would people feel if, at a
public university that happened to be dominated by religious
conservatives, a gay-rights group was denied recognition because it
refused membership to people who openly espouse anti-gay views?

Cathy Young writes a weekly column for RealClearPolitics and
is also a contributing editor at Reason magazine. She blogs at
http://cathyyoung.wordpress.com/. This article
originally appeared at RealClearPolitics.

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