I just scanned through the majority opinion of Christian Legal Society V. Martinez, 08-1371 and found some very disturbing items.
First, some background. In September of 2004, the Christian Legal Society applied to Hastings College of Law (part of the University of California system) to become a Registered Student Organization (RSO). Hastings denied the application because the CLS required its members and officers to sign a “Statement of Faith.” The CLS bylaws excluded homosexual students and students from other religions from membership and leadership positions because those students failed to comply with the Statement of Faith. It also excluded those who practiced sex outside of marriag and other actions that violated Biblical principles. It did not exclude those students from participation in events – just from voting membership and leadership positions. Hastings has a requirement that all RSO be open to all students regardless of religion or sexual orientation. CLS appealed for an exemption from Hastings. When Hastings denied the exemption, CLS sued Hastings for violating its constitutional right to free speech, association, and the free exercise of religion. The Supreme Court by a 5 to 4 vote decided in favor of Hastings. Justice Ginsburg wrote the majority opinion. Justices Kennedy and Stevens wrote concurring opinions.
Now for the disturbing logic of the majority.
1. Adherence to a set of beliefs and a commitment that voluntary members of a group adhere to the beliefs of the group is harmful to intellectual development.
Justice Ginsburg argued in her opinion that the exclusivity of CLS did not “contribute to the Hastings community and experience.” Kennedy argued that such adherence to principles of faith stifled intellectual development on campus. “The era of loyalty oaths is behind us. A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion. The school’s policy therefore represents a permissible effort to preserve the value of its forum.” (p. 4) Kennedy most be applauded for consistency. He has disregarded his own loyal oath to protect and defend the Constitution and he will now allow it in others. I assume that perjury and treason charges will now be abandoned because they both require loyalty oaths.
2. Hastings did not violate the rights of CLS because it still allowed them to function on campus with the use of some campus resources but without official sanction as a RSO.
Ginsburg, Kennedy, and Stevens all made much of the non-relevant point that Hastings allowed CLS access to venues for their events and to use of chalkboards and message boards around campus. Their argument boiled down to the fact that separate but somewhat equal treatment of Christians was legal and constitutional. No where did the justices rule that Hastings had to treat the CLS in such a way but all three applauded the treatment as showing the benevolence of the Hasting administration and the ingratitude of CLS. I assume that we have returned to the days of Plessey v. Ferguson when separate but equal governed the segregation of the races. Except now it is the Christian who can be treated as separate but somewhat equal. Never mind that the Supreme Court has previously ruled that separate is inherently unequal.
3. The general tone of dismissal and the vehemence of the majority toward Christians.
Ginsburg and Kennedy rejected the logical scenario that an organization which could not restrict membership or even leadership might be taken over by members who did not support and might actually be hostile to the stated goals and principles of the group. They deemed it improbable and said that it was not Hastings responsibility to prevent such a scenario.
Ginsburg dismissed much of the complaint as without merit or even standing. Kennedy, through his loyalty oath comment, indirectly compared Christianity to Joe McCarthy. Justice Stevens compared the discrimination directly to discrimination against “Jews, blacks, and women.” He bemoaned the fact that: “A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.” (p. 6)
4. While the majority claimed to confine itself to a narrow ruling on the case, its rhetoric soared beyond the case and will have a larger impact on society.
Ginsburg argued: “The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.” (p. 2) Subvention means endowment or subsidy. Ginsburg argued that the state had a right to determine which groups it subsidized and which it did not with public tax dollars. She did not rule out the fact that the state might even subsidize some exclusionary groups and not others. The power of subsidy and official endorsement gives the state substantial influence over which groups will succeed and which will fail. She made no apologies and denied that uneven “incidental effect” merited a constitutional challenge.
In short, the highest court in the United States held, in an official court document that will set legal precedent, on June 28, 2010 that the adherence to traditional Christian beliefs stifled intellectual development and the free exchange of ideas, that adherence to said beliefs discriminated against fellow citizens in the same way as those who discriminate against Jews, blacks, and women, and that the government had the right to discriminate against those groups.
Will future attacks upon churches an other Christian organizations follow the same path? Will their adherence to Biblical principles be called anti-intellectual, divisive and thus be deemed harmful to society? Will their adherence to Biblical principles be called discriminatory and deemed on the level with race segregation, anti-semitism, and sexual discrimination? Will the government use its power to reward compliance with its own directives to create counter groups deemed more constructive to society? Christian Legal Society v. Martinez says yes and provides precedence for such action.