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SCOTUS Tells Berkeley Law Students To Fraternize With Fornicators, Sort Of…..
Today, among other decisions, the U.S. Supreme Court ruled that the “public” Hastings Law School in California can deny recognition to the student run Christian Legal Society because they deny membership to students who do not share their beliefs. Specifically, members are held to a “statement of faith” prohibiting “fornication, adultery, and homosexual conduct.”
My best advice for the group and others like it is to drop the words “homosexual conduct” from your “statement of faith.” You’ve got fornication and adultery in there. Arguably any kind of sexual conduct between any two people outside of marriage is included in that set of no-nos. Since you’re at a public school, why don’t you play it smart? If people at your meetings want to bend these rules, evangelize them. This is a public school. You’ve got to play by at least some rules. Although the rules the school wants is that all groups must admit “all-comers,” the “comers” you don’t want in your group are less likely to “come” if you leave out incendiary words in your by laws. Let the school go to the Supreme Court and ask you to let in “fornicators and adulterers.” They wont.
If you want to go to a Catholic law school like I did, you’re allowed to do more with your religious goals, but you will also have my student loan bills, which you are welcome to.
Published in General
Today’s Christian Legal Society and McDonald reaffirm the one central question that determines all modern Constitutional law: What does Justice Kennedy think?
Exactly Pat. At least Kennedy didn’t come up with this Justice Stevens argument: “This could lead to absurd results like a club for people that think “African-Americans” are inferior.” Being Black is an immutable characteristic, that’s far different than a belief system that can change. It’s an in applicable, yet it is now part of the permanent record. If I was on the Court, I would want to only have arguments that couldn’t be picked apart by a 5th grader attached to my name.
Small correction for your title: As a former employee of UC Davis, I must note that Hastings is not associated with the Davis campus. Davis does have a law school, but Hastings is associated with UC Berkeley.
Otherwise your comments are spot on.
Sorry, but even more so then. Asking for trouble. But then again, that’s fun for some people.
Thanks.
Joe, Stevens’ dissent in McDonald also brought up segregation and the subjugation of women. Professor Yoo put it best in the Ricochet podcast discussion regarding the Kagan nomination: the legal intellectual firepower is now in the Conservative camp. My hope remains that these cheap shots are the last rhetorical gasp of a dying judicial philosophy.
That’s why The Logo carries a magic wand. Thanks, Tom.
The Court’s 5 to 4 decision in Christian Legal Society v. Hastings Law School is in my view profoundly misguided on all matters of principle. Much of Justice Ruth Ginsburg’s opinion for the five-member majority is spent in dealing with the question of whether CLS was targeted for special treatment or whether the take-all-comers policy applied all groups, including political and social clubs. In her view, the stipulations settled the question that the policy was consistently applied to all groups.
The appropriate answer is a giant so-what. The real question in these cases is not the formal application of doctrine. The key issue in any first amendment context is whether the policy in question has disparate impact on groups that have strong associational preferences. In this case, the policy would allow nonChristians to set policies for Christian groups, which represent a tiny sliver of the overall student population. What possible sense does it make to allow majority groups to drive minority groups off campus by taking over their internal deliberations. Justice Ginsburg’s effort to show how the nondiscrimination policy promotes diversity takes a weak type of public justification and uses it to overcome a very strong policy in favor of freedom of association on matters dealing with matters of faith. This is a case to apply the “unconstitutional conditions doctrine” such that access to the use of campus facilities in times when they are not dedicated to academic use should be open to those whose religious beliefs do not conform to the crowd. There is less diversity, not more, when all student groups have to follow a nondiscrimination policy that subjects fringe groups to the greater control of the majority.
On my drive home from work today I was pondering the following mischievous scenario: What if all bunch of right wingers at UC Berkeley joined one of the smaller Gay Pride clubs, which would be obligated to admit them without prejudice. They could then form a majority and amend the bylaws to completely transform the group’s purpose into a trap and skeet shooting club, or merge the group into the Christian Legal Society. You think the lefties would support universal “nondiscrimination” then?
Yoo is absolutely right. The intellectual fire power is on the right and it’s so evident when you see how some justices are stretching so far to further an agenda. I’m reminded of Ginsberg’s dissent (I think it was her) regarding Miranda rights recently. She was worried that making someone speak up to “vocalize” that they did not want to speak because it “made someone speak.”
It’s about as bad an argument as I have ever heard for anything. When you consider that this kind of logic has consequences, like eliminating possible info that could prevent further victims and save lives, it becomes outrageous.