So holds Christian Legal Society v. Martinez, in a 5-4 opinion; the majority consists of the liberals plus Justice Kennedy. I think this is the right result as a constitutional matter — even when the university rule ends up barring a religious group from selecting members and officers based on religion and sexual orientation — see this article, though I can’t yet speak to the means through which the majority arrived at the result. (As I mention in the article, I think having such broad rules is often a bad idea, and bad for diversity of opinion and culture on university campuses, but that’s a separate question.)
UPDATE: I originally described the Court’s decision as dealing with nondiscrimination policies, but I’ve updated the post to be more precise: The Court treats the Hastings policy at issue in the case as a requirement that student groups accept all students, “regardless of … status or beliefs,” to the point that “for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.” The Court concludes only that this policy is constitutional; it does not directly opine on whether it would be constitutional for the university to have a policy that only bars discrimination based on race, religion, sex, sexual orientation, and the like (and that thus lets groups discriminate based on other criteria, such as a student’s beliefs that do not fall within the rubric of “religion”).
Sorry for the initial imprecision; I’ve been focusing first on the Second Amendment incorporation case, and I’m just now getting to read the Christian Legal Society case.
theobromophile says:
Why? The potential to make it difficult for minority groups (however defined) to have their own groups, with their own standards for leadership?
(I’m also wondering if the individual Justices would have reached the same result if a women’s student group were suing to keep pro-life men out of its leadership, but I’m cynical and snarky this morning.)
June 28, 2010, 10:58 amTim says:
I guess we can’t hope for them to get all of them right.
June 28, 2010, 11:05 amjrose says:
Eugene,
Only 5 of the justices analyzed the written non-discrimination policy, and 4 of them disgreed with you. Stevens agreed, and did an excellent job laying out the case. The other four in the majority ruled only on the so-called all-comers policy.
June 28, 2010, 11:15 amAnon21 says:
Is the implication here that Prof. Volokh’s legal analysis of this general issue is limited to the specific wording or application of UC Hastings Law’s policy? I think that’s wrong, and I think his general view was adopted by the majority.
June 28, 2010, 11:25 amJon Rowe says:
Once again, Justice Kennedy breaks the tie.
June 28, 2010, 11:29 amRepeat says:
And once again, Justice Kennedy’s concurrence is 1L level. Embarrassing.
June 28, 2010, 11:33 amFedya says:
I’m not a lawyer, and haven’t read this decision, but I don’t understand why Title IX requires even private universities to submit to gender quotas in sports just because the schools receive Federal funds, but this receipt of funds isn’t held to require the schools to observe the students’ first amendment rights.
It seems to me as though both of those cases would fall in the same area as the old 55MPH speed limit or the 21-year-old drinking age, where states could theoretically choose to ignore them, but would lose gobs of federal funding.
June 28, 2010, 12:09 pmjust another cynic says:
Theobromophile -
I’m sure you already know this one, but Hill v. Colorado says all you need to know about whether the Court’s Left considers the content of speech in protecting it or not. Unions and NAACP? OK. Pro-lifers? Nope.
June 28, 2010, 12:10 pmMark N. says:
I think Congress actually could pass a statute saying: any private university that accepts federal funds must, as a condition of receiving those funds, respect the First Amendment to the same extent a public university would be required to. That would make it analogous to the Title IX conditions, or to the drinking-age strings attached to federal highway funding. But as far as I know, Congress hasn’t actually tried to do that with the First Amendment and university funds.
June 28, 2010, 12:37 pmruuffles says:
The same for affirmative action?
June 28, 2010, 12:45 pmDilan Esper says:
Theo:
You are wrong. Indeed, one of the impetus for all comers rules was conservative criticism over balkanized student groups– black student unions, MEChA, etc.
So you are dealing with a rule part of the point of which is to prevent school funding of insular left-wing groups. Had a male pro-lifer been trying to get into the feminist sudents association, the result would have been the same.
Cynic:
Hill is a bad decision, and there’s no doubt concern for abortion rights played a role in it. But it’s not accurate to imply that the court is applying a double standard; in fact, courts are relying on hill to ghetto-ize all sorts of speech at events and businesses; left wing protests at political conventions have been confined to ‘free speech zones’ where the speech can never reach its target.
So even though abortion rights may be part of the motivation for hill, in the end, every ideology’s protesters lost in that case.
June 28, 2010, 12:51 pmzuch says:
The majority dismissed the CLS ‘argument’ that the court ought to look into an alleged ‘as applied’ issue, because the CLS had stipulated that the “all-comers” policy applied to everyone:
This seems procedurally unremarkable.
Cheers,
June 28, 2010, 12:52 pmOhio Scrivener says:
Parts of Justice Kennedy’s concurrence looks like he highjacked material from a Sociology 101 textbook:
That is some serious touchy-feely stuff. Now, you’ll have to excuse me, while I go “nurture a growing sense of self.”
June 28, 2010, 12:52 pmBill says:
I grudgingly agree with Alito’s dissent. If indeed, an environmental club (per his example for this case) may delimit membership and leadership to environmentalists, but an atheist may join and apply to join and lead a religious group, something’s rotten. Clubs and campus groups that don’t focus their efforts straight back into student professional development have always operated in the grey and are normally permitted to do so. The university wanted to retain this grey in some areas while exercising special pleading to deny it to others. This ruling is almost daring disenfranchised religious groups to “raid” other clubs’ membership to demonstrate the unintended consequences and double standard. Indeed, I’d almost encourage it, but I’d rather see the students study for their Calculus 2 exam.
June 28, 2010, 12:55 pmSwan Trumpet says:
I skipped to the Alito dissent and it seems quite clear that the University policy of non-discrimination and their own discrimination in applying it solely to certain groups is at odds with the individual right to freely associate. After all, it makes no sense to have a Christian student group forced to admit atheist members or a La Raza group forced to admit those who find little to admire in hispanic culture.
It would make more sense for universities to refuse recognition to all student groups save fraternities and sororities.
June 28, 2010, 12:56 pmShelbyC says:
You wouldn’t argue that Congress could pass a law requiring them to do that, would you? Then why would Congress be able to deprive a University of public funding in order to do that?
June 28, 2010, 12:56 pmjrose says:
Firstly, the majority limited its ruling to an understanding that the environmental club could not delimit it’s membership and leadership. Secondly, Eugene and Justice Stevens both argue that nothing is constitutionally “rotten” if the environmentalists could, while CLS could not. In such a case, they argue CLS was not targeted because of its viewpoint, the impact on its expressive association is only a disparate impact, and hence constitutuionally permissible.
As above, the majority finds the University did not act in the manner you claim they did. Assuming however the University did act in this manner, there is no question that CLS’s right to expressive association is burdened. But, the standard in a limited public forum is only that the University be viewpoint neutral (the dissent believes it would not be viewpoint neutral) even if it does burden expressive association.
June 28, 2010, 1:08 pmDilan Esper says:
I skipped to the Alito dissent and it seems quite clear that the University policy of non-discrimination and their own discrimination in applying it solely to certain groups is at odds with the individual right to freely associate
This is going to be technical, but you can’t get at this sort of thing in a facial challenge.
A facial challenge strikes down the entire policy as unconstitutional. In general, courts will only do that when it is unconstitutional in all of its applications. With respect to speech, the standard is loosened a little bit (because of the fear of chilling speech), but you still need to show that the statute has a substantial number of unconstitutional applications.
An as applied challenge says the policy may be permissible with respect to some other factual situations, but on this particular set of facts, it violates the Constitution.
So, if you mount a facial challenge, your argument is “schools cannot under any circumstances under the Constitution require that the student clubs that they fund have an open membership policy”. And as you can see, that’s a very difficult argument to win. Whereas if you mount an as-applied challenge, you can argue “schools may be able to enforce an open membership rule for funded organizations if they do it consistently, but in this particular case, the rule was enforced in a discriminatory fashion and must be struck down”.
Activist groups prefer facial challenges because they cost less to litigate and you et a broad ruling that applies to many cases. But if the real objection to this policy is that it was inconsistently applied, that simply cannot be raised in a facial challenge.
June 28, 2010, 1:18 pmBill says:
but frats and sororities discriminate by gender. A better example would be to deny recognition of all groups exempt for those that are explicitly part of the school’s mission. Yes to Student Chapters of the MLA, ASCE and IEEE but No to the Fellowship of Christian Athletes, Black Student Association or International Student Association or even the Society of Women’ Engineers. All three of the no-ed out groups do provide important representational services to the students under their wings.
June 28, 2010, 1:19 pmBill says:
but frats and sororities discriminate by gender. A better example would be to deny recognition of all groups exempt for those that are explicitly part of the school’s mission. Yes to Student Chapters of the MLA, ASCE and IEEE but No to the Fellowship of Christian Athletes, Black Student Association or International Student Association or even the Society of Women’ Engineers. All four of the no-ed out groups do provide important representational services to the students under their wings.
June 28, 2010, 1:20 pmManju says:
I not sure that works. Title IX like the rest of the CRA applies to private actors No? Isn’t that what the whole ferocious debate on this blog regarding libertariansim and anti-discrimination laws is all about?
But the first ammendment famously doesn’t, since if it did it would be tantamount ot forced speech, and that would be a first ammendment violation.
June 28, 2010, 1:29 pmyarrrrr says:
“the era of loyalty oaths is behind us.”
http://www.google.com/hostednews/ap/article/ALeqM5irL_-2G2z2zwGWMrKD-ebazXUNtgD9GKD64O0
WTF? Really?
June 28, 2010, 1:50 pmyarrrrr says:
“the era of loyalty oaths is behind us.”
http://www.google.com/hostednews/ap/article/ALeqM5irL_-2G2z2zwGWMrKD-ebazXUNtgD9GKD64O0
You have got to be kidding me… GTFO Kennedy… where is the context of this remark?
June 28, 2010, 1:54 pmzuch says:
Yes. I’d love to see law students required to learn some math as well.
Cheers,
June 28, 2010, 1:54 pmBill says:
OK. Thanks for the correction. And still, does that not still create a fertile ground for membership monkeyshines (even more so with the correction)?
June 28, 2010, 1:55 pmBill says:
Some pre-law programs are selling themselves with a goodly amount of math and upper-level hard science classes (which secretly means there’s more math than the catalog says, but don’t tell anyone… shhh…). Not like it’s a bad thing! It creates a nice little niche for such programs when it comes to science, engineering and environmental law.
June 28, 2010, 2:07 pmjust another cynic says:
Dilan,
I am not sure how to square the parts of your response. You say “Hill is a bad decision, and there’s no doubt concern for abortion rights played a role in it.” Then you say “But it’s not accurate to imply that the court is applying a double standard.” Seems to me that if the abortion topic “played a role” in the outcome, and if the outcome might have been different for environmental protestors, then the court applied a double standard in Hill.
The rest of your comment seems to say that the court, and lower courts, have not continued on the double-standard path, so other “left” causes now get the same lousy treatment that the “right” cause got in Hill. I agree with that point, and it just shows that the Court’s abortion-based, content-drive bias hurt everybody in the long run. But that does not mean that it wasn’t a lousy double-standard (relative to their earlier protection of “left” speech) in Hill itself, as your first line acknowledges.
The better result, of course, would be for the court to even-handedly be more speech-protective, but as long as abortion opponents insist on speaking, that will never happen.
June 28, 2010, 2:07 pmUrso says:
Sounds more like the “personal statement” that a college senior is required to submit with his law school application: “I want to attend law school for the unique opportunity to spend three years meeting other law students and developing skills. I hope to participate in a community that teaches me how to create arguments in a convincing, rational, and respectful manner and to express doubt and disagreement in a professional way.”
June 28, 2010, 2:15 pmAnon21 says:
Right, well, Title IX applies to private actors because it says it does. The proposal (or hypothetical) offered is a statute which would apply the First Amendment to (some) private actors.
Offering a private university funds conditioned on its compliance with First Amendment principles doesn’t appear to violate the First Amendment on its face, insofar as the schools make a voluntary choice to take federal money and accept the conditions placed upon the receipt of those funds. This is the same theory which justifies the NEA’s restrictions on the content of artistic pieces which it funds. I suppose the unconstitutional conditions doctrine could theoretically come into play here, but my strong impression is that if that doctrine ever had legs, they’ve long since been broken.
June 28, 2010, 2:17 pmPatHMV says:
Dilan, can you provide a citation in support of this statement?
I’m not denying it’s so, just would like to see whether this was a few oddball conservatives or more and mainstream conservatives, and also the context of the specific criticism being made. My suspicion is that the context is important, and will show that the “criticism” was being made in response to a demand that some conservative group admit, say, homosexuals, while liberal groups were free to admit or deny anybody they’d like to, and thus the criticism was nothing more than “we don’t like this rule, but if you’re going to apply it to us, you better apply it to everybody.”
June 28, 2010, 2:18 pmMark N. says:
Isn’t it already pretty well-settled that Congress may attach strings to funding that would be beyond its powers to legislate directly?
June 28, 2010, 2:18 pmtheobromophile says:
Dilan: please re-read what I wrote. (I end up telling you to do that a lot.) My comment was about the individual Justices (obviously); your response, in telling me that I am wrong, deals with school administrators.
On a side note, I would be fascinated to know the origins of the “all-comers” rule at universities… care to provide actual factual support, or are you just interested in attacking a strawman without any substantiation?
June 28, 2010, 2:33 pmAnderson says:
If indeed, an environmental club (per his example for this case) may delimit membership and leadership to environmentalists,
But as stated above, the parties stipulated this was NOT the case. Alito appears to be deciding some controversy not before the Court?
June 28, 2010, 2:33 pmAnon21 says:
South Dakota v. Dole stands for that proposition in the federalism context. I don’t know what the Court has said about this with regards to imposing legal conditions on the receipt of federal funds by private actors, but I imagine the principle would be the same. As to requirements which would arguably violate the private entities’ constitutional rights, that goes back to unconstitutional conditions.
In any event, as Heart of Atlanta and McClung demonstrate, there was once a time when Congressional power to impose civil rights obligations (including, perhaps, First Amendment-like standards) on private entities was near-unlimited. These days, funding with strings might just be a convenient way to do an end-run around Lopez-Morrison.
June 28, 2010, 2:55 pmDilan Esper says:
I am not sure how to square the parts of your response. You say “Hill is a bad decision, and there’s no doubt concern for abortion rights played a role in it.” Then you say “But it’s not accurate to imply that the court is applying a double standard.” Seems to me that if the abortion topic “played a role” in the outcome, and if the outcome might have been different for environmental protestors, then the court applied a double standard in Hill.
The desire to protect abortion rights was a catalyst for a speech ruling that harmed free speech across the board.
June 28, 2010, 3:00 pmPZ says:
Does anybody know why CLS stipulated to something that apparently 1. hurts their case; and 2. contradicts reality?
Referring to the stipulation that Hastings has an “all-comers” policy when it clearly does not.
Thanks!
June 28, 2010, 3:02 pmDilan Esper says:
I’m not denying it’s so, just would like to see whether this was a few oddball conservatives or more and mainstream conservatives, and also the context of the specific criticism being made. My suspicion is that the context is important, and will show that the “criticism” was being made in response to a demand that some conservative group admit, say, homosexuals, while liberal groups were free to admit or deny anybody they’d like to, and thus the criticism was nothing more than “we don’t like this rule, but if you’re going to apply it to us, you better apply it to everybody.”
There was a ton of conservative criticism from authors like Allan Bloom and Dinesh D’Souza in the late 1980′s and early 1990′s criticizing schools for funding “balkanized” student groups (especially having to do with race, gender, and sexual orientation). Open-membership requirements started getting enacted in response to that criticism.
June 28, 2010, 3:02 pmManju says:
Ah, I see..Yes that’s what Mark N meant.
I wonder why, however, title IX only applies to intistuions receiveing federal funds when the rest of the CRA applies to all public accomadations, ASAF. Why’d they narrow this one down?
June 28, 2010, 3:03 pmShelbyC says:
IIRC it’s pretty well settled that the spending power gives Congress the right to attach strings to things beyond its other powers, but I don’t know of any case where it can attach a condition on a benefit that would violate the first amendment.
June 28, 2010, 3:03 pmDilan Esper says:
Dilan: please re-read what I wrote. (I end up telling you to do that a lot.) My comment was about the individual Justices (obviously)
In that case, you are simply ignorant about the law in this area. Every individual justice except Kennedy voted the same way they have voted in every one of these sorts of cases.
For Kennedy, an open-enrollment rule is distinguishable from other sorts of rules where he had voted with the religious claimants.
So there’s no valid charge of hypocrisy. Just the standard victimization complex whenever the “persecuted Christian majority” loses a court case.
June 28, 2010, 3:04 pmDilan Esper says:
Does anybody know why CLS stipulated to something that apparently 1. hurts their case; and 2. contradicts reality?
Because they were swinging for the fences. They wanted a broad ruling that “protected” Christian students who worried about “icky homosexuals” seeking membership in their student groups, not a narrow ruling that Hastings didn’t consistently enforce its policy. So they stipulated in the hope that they would get the broad ruling they wanted, and the gamble didn’t pay off.
June 28, 2010, 3:06 pmBob from Ohio says:
The CLS should just accept it unofficial status. It is better off anyway.
The next step is to take over the Muslim group. How many Muslim students can there be? I bet fewer than conservative Christians even.
In a short time, the administration will try to punish the CLS people over the take over and a new case can be born.
June 28, 2010, 3:08 pmMorgan says:
I’m no constitutional law scholar, but it seems to me that the problem is that the public institution is in a position of determining whether a group is “approvable” based on its actions, which may arise directly from the shared values and beliefs that form the core of the association.
Why should a public entity be in the position of determining what beliefs are worthy of approval?
In this case, hasn’t the state effectively said that an association based on religious beliefs that don’t object to LGBT activity would be approved, but one based on beliefs that do is unacceptable? Isn’t that the kind of thing the establishment clause was supposed to eliminate?
The practice of official support for these organizations should be eliminated, if for no other reason than to get away from official state sanction of particular values and beliefs.
June 28, 2010, 3:13 pmAnon21 says:
No. In this case, Hastings has said that groups are permitted to hold and espouse any and all beliefs about homosexuality, but that they are not permitted to express those beliefs through certain conduct (i.e. excluding Hastings students), if they still want to receive school funding.
June 28, 2010, 3:19 pmPatHMV says:
Dilan, the crux of the arguments in THAT context was that it was inappropriate for a school to fund the NAACP if it would likewise be inappropriate to fund the NAAWP. If you can’t have a “white student athletes” group, you can’t have an “African-American student athletes” group… exactly as I suggested. Conservatives generally are fine with private groups deciding who can and cannot be members of that private group. The vast majority of us are willing to make exceptions to that general rule to protect against racial discrimination, because of the difficult past we have had in that area. But we don’t support double-standards in that area. Either racial discrimination in membership in private groups should be allowed or it shouldn’t. There shouldn’t be exceptions for “minority” races.
June 28, 2010, 3:24 pmtheobromophile says:
Wow, Dilan, way to be dispassionate and reasoned!
Given that few universities, workplaces, or groups are perfectly reflective of America as a whole, the “majority” argument is not the necessary winner you think it is. I’m frankly appalled that someone who considers himself a feminist would snark at a group that compromises over 50% of the population but feels that, despite its numbers, it does not get its due in all areas, as that description also matches women (who compromise, last I checked, 51% of the total population, about 52% of the voting-age population, 57% of university students, a majority of medical school students, and, for fun, a group that makes 80% of purchasing decisions). Yet we fully endorse the right of women to assemble into their own groups, as we recognise that constituting a majority of the population does not translate directly into compromising a majority in every given situation, nor that one’s numbers translate directly into social, economic, and political power.
Law schools are hardly bastions of the conservative, Christian right, let alone accepting of their viewpoints, which is why groups like CLS were formed. Furthermore, there are plenty of people who will call themselves “Christian” but hardly follow the dictates of that religion; thus, even raw numbers and percentages of self-professed Christians are hardly indicative of what it is like to be a conservative, traditional Christian in law school.
As for everything else: I’ve been skimming Dinesh D’Souza’s work, and am struggling to find any recommendation for an “all-comers” policy, let alone evidence that a liberal state law school in San Francisco used a conservative academic’s criticism to create an all-comers policy with a foundation in its liberal non-discrimination rule. Care to connect the dots, Dilan?
[Raises eyebrows] You might want to either provide evidence of your claims (rather than making more unsubstantiated ones), or retreat, since it’s not looking good for your positions here. Far better to take the intellectually honest route and acknowledge that this decision could have pernicious repercussions for minority groups.
June 28, 2010, 3:35 pmDilan Esper says:
Dilan, the crux of the arguments in THAT context was that it was inappropriate for a school to fund the NAACP if it would likewise be inappropriate to fund the NAAWP. If you can’t have a “white student athletes” group, you can’t have an “African-American student athletes” group… exactly as I suggested. Conservatives generally are fine with private groups deciding who can and cannot be members of that private group.
I think this statement sweeps too broadly. Bloom and D’Souza both argued that the mere presence of so many factionalized groups on campus interferened with the pluralistic mission of the university. That argument was also being made by Federalist types when I was in law school.
It would be accurate enough to say that lots of conservative lawyers arguing these cases, and the movement interests that are funding them, are making a different and inconsistent argument, but open-access rules historically were definitely an attempt to respond to Bloom’s and D’Souza’s critiques.
June 28, 2010, 3:36 pmDilan Esper says:
Theo:
You might want to check out the chapter of “Illiberal Education” about student groups.
As for the rest of your comment, I don’t believe I have expressed a view on the merits of this case. I do, however, think that it’s quite obvious that all 9 justices are voting quite consistently to the way they always vote in these cases. Thus, what I was characterizing as the stupid Christian majority victimization complex was your ignorant statement that the justices were somehow only deciding this case the way they did because of who the parties were.
June 28, 2010, 3:39 pmShelbyC says:
Well, that sure doesn’t seem inconsistent with Theo’s observation that, had a pro-choice feminist group been the plaintif, the desire to protect abortion rights might been a catalyst for a different result.
June 28, 2010, 3:40 pmtheobromophile says:
(Emphasis my own.) D’Souza argued that there were many interacting elements of the collegiate experience that served to undermine the mission of a university, such as affirmative action, ethnic/genders majors and courses, special housing for minority groups, endless “diversity” programming, and speech codes.
Saying that Black Law Students was the prime target of D’Souza’s condescension, and thus an appropriate focal point for reform, which was then taken up with gusto by liberal institutions, is plainly absurd.
June 28, 2010, 3:44 pmShelbyC says:
Yeah, Theo you ignoramus. You’re clearly confusing these cases with those other cases where the justices do base their vote on “The desire to protect abortion rights.” Geez. Get with it.
June 28, 2010, 3:50 pmRPT says:
As probably one of the few actual CLS members here, I often disagree with the strategies of the various groups (i.e ACLJ) who litigate these issues. They would better actual results for actual clients by doing the litigation better. As to the substantive result, I wouldn’t have a problem with nonbelievers attending meetings, assuming compliance with usual and universally applicable norms of courtesy and behavior. As for running for leadership offices, is this an actual or potential problem; did it happen at Hastings?
June 28, 2010, 3:53 pmtheobromophile says:
ShelbyC: It’s Mademoiselle Ignoramus to you. :p
June 28, 2010, 3:57 pmSteve says:
Swan Trumpet, please cite the Supreme Court decision recognizing this so-called “individual right to freely associate.” Let me give you a hint: THERE ISN’T ONE. No such right appears in the text of the Constitution, and no Court ruling has ever recognized one. Indeed, the Court has REFUSED to recognize the existence of any such general right of free association. If you like it, I suggest writing your member of Congress and seeking to amend the Constitution.
What the Court has recognized is a right to associate FOR THE PURPOSE OF EXPRESSING A VIEWPOINT. Nothing in Alito’s dissent even attempts to explain how a flat ban on gay members, including gay Christians, impairs the mission of this group. What is its mission? He doesn’t explain. How would the gay Christian members interfere with it? He doesn’t say.
But Swan Trumpet’s instinct was correct. All this case has ever been about from the start was a culture war campaign by right-wingers to try to get the Court’s conservative majority to engage in judicial activism and use the First Amendment to create a made-up constitutional right to ignore gay-rights laws.
June 28, 2010, 3:57 pmMorgan says:
So an organization can believe whatever it wants, as long as it doesn’t act on those beliefs (at least when doing so implies discrimination in membership)? I can see that’s not exactly the same thing as official sanction of beliefs, but I’m not much more comfortable with the new formulation – an association that acts based on religious beliefs that don’t object to LGBT activity would be approved, but one that acts based on beliefs that do is unacceptable.
It’s still an official distinction between “good religion” and “bad religion”.
It isn’t that I have an opinion on the ruling itself – I haven’t read it (nor am I likely to). It just seems to me that the idea of officially sanctioning groups leads inevitably to having to say “your ideas are okay, yours are not”, which is not a function I want the state to serve.
June 28, 2010, 4:04 pmArthur Kirkland says:
At least as likely: A coalition of non-bigoted Christians (perhaps a majority of Christians) and members of the reality-based community (likely well-represented at a school of law) get together and overrun the small-minded hypocrites (unless they have excommunicated the heterosexual members who engaged in oops-did-we-just-cross-the-line premarital sex, adultery, shack-up specials, blurry one-night stands, “committed relationship” canoodling and every other manner of congress that violates their written pledges, they are loathsome hypocrites) of the CLS. The excommunicable might constitute a majority of the pledge-signing heterosexual members.
I am confident I could construct a Biblical case against overly pigmented people at least as strong as the anti-gay case some (but not all) Christians advance as a foundation for discrimination against gays. Anyone want to take a crack at arguing that the Christian Legal Society could be entitled to engage in school-sanctioned racial discrimination?
Is there is a satisfactory answer to this question? Some people want to discriminate against other people — and to have an institution bless and enforce that discrimination — on a religious basis that (1) probably doesn’t seem so religious to, say, a gay cleric from a Christian church, a (2) probably is not enforced against heterosexual members, suggesting that God’s law isn’t the only factor involved here. I would oppose a government edict that people not possess bigoted beliefs, but I am not greatly bothered when government declines the invitation to endorse discrimination.
June 28, 2010, 4:04 pmjrose says:
I thought the ban was on those who participate in or advocate for homosexuality, so that a celibate gay person can join. It seems to me, the mission is in part to advance a certain viewpoint of morality, and not permitting the ban (as I described it) would impair that mission.
June 28, 2010, 4:18 pmLymis says:
But you CAN have either group. You just can’t limit the membership by race. In other words, as long as you let African-American students join the “white student athlete’s” group, you’re good to go. Why they would want to, and what the club would focus on is a different issue.
June 28, 2010, 4:24 pmAnon21 says:
Technically, the phrase used in this litigation has been “unrepentant homosexual conduct,” suggesting that mere celibacy might be insufficient to purge the taint of the unspeakable crime. But the “participate in” that you elide into “advocate for” is really pretty significant, and transforms CLS’s policy from a speech-based distinction into a status-based distinction. Nor does the “conduct, not status” argument hold, at least for legal purposes, post-Lawrence. (Nor should it.)
June 28, 2010, 4:30 pmLymis says:
That’s a misinterpretation. The “acts” in question are limited to the ones they are engaging in about the organizing and membership of the club, not about homosexual acts or any other content-based acts with regards the club.
The group is simply required to allow all students to join the group, just as all other funded clubs are. Any other group would be required to do the same – a gay student club would be required to allow straight students to join, even those who profess a disapproval of gay people. (Whether this in any way extends to being forced to keep disruptive members from allowing the club to function isn’t part of this discussion – presumably any club could vote to remove a member who was haranguing all the other members based on THAT behavior. But not because of the beliefs that underlie it.)
June 28, 2010, 4:32 pmptt says:
Perhaps, as a member, you could correct this information as to the founding of CLS:
This explanation of CLS’s formation seems doubtful given that the organization was incorporated in Illinois in October of 1961.
June 28, 2010, 4:33 pmArthur Kirkland says:
On which side of that divide fall those who discriminate against homosexuals, eat shrimp, tolerate the deaths of innocent civilians and support unnecessary military invasions, consume cheeseburgers, endorse torture (including of some innocents, because nobody’s perfect), plant differing crops in adjacent fields, support the death penalty, accept gay clerics, treat women as second-class citizens, fail to observe the Sabbath, celebrate wealth, . . .
June 28, 2010, 4:33 pmjrose says:
I’m not seeing how either “participate in” or “advocate for” is a status-based rule. But even assuming it is a status-based rule, didn’t Dale establish that a status-based rule can burden expressive assoication?
June 28, 2010, 4:39 pmzuch says:
Not exactly. While Title II of the 1964 CRA applies to all public accommodations, Title VI of the same CRA applies only to government agencies that receive federal funding. So Title IX of the Education Amendments of 1972 is of a piece with the 1964 CRA. It deals only with educational institutions because that’s what it deals with (being one of the “education amendments”).
There is no requirement that any specific legislation fix all problems present in order to pass constitutional muster.
Cheers,
June 28, 2010, 4:46 pmKen Arromdee says:
They are only hypocrites if they don’t believe those things are wrong. Someone who does things that they consider wrong is not a hypocrite, just a sinner. I assume that a gay person who said “I regret committing the sin of homosexuality” would be allowed in the group, just like an adulterer who says something similar would be allowed in, so there’s no hypocrisy.
I doubt that they accept adulterers who proclaim that they are proud to be adulterers.
June 28, 2010, 4:51 pmtheobromophile says:
Anon21: flip your last clause around and you have the basic idea. “Mere celibacy” is insufficient, so long as that celibacy is not out of choice or follows unrepentant homosexual acts. The focus is on current actions, not on desires nor past actions.
As for the host of absurd arguments: people, learn the difference between the Old Testament and the New Testament. The shellfish arguments are a lot like saying that it’s unconstitutional to allow women to vote. The New Testament (and, please, actual Christians should help out here) made it clear that the old laws, which applied to Jews, were not applicable to Gentiles seeking salvation through Christ.
My initial point, again: I wonder if those who are shamelessly throwing around those ideas would be quick to judge a group of Jewish law students for planting differing crops in adjacent fields. Arthur Kirkland, I’m presuming that you’ve trashed our Judiac colleagues for such hypocrisy, correct?
June 28, 2010, 4:55 pmRPT says:
From Rightwingwatch.com:
“Since its founding in 1961, CLS’ nine organizational objectives, as set forth in its amended not-for-profit articles of incorporation, have been:
* To proclaim Jesus as Lord through all that we do in the field of law and other disciplines;
* To provide a means of society, fellowship and nurture among Christian lawyers;
* To encourage Christian lawyers to view law as ministry;
* To clarify and promote the concept of the Christian lawyer and to help Christian lawyers integrate their faith with their professional lives;
* To mobilize, at the national and local levels, the resources needed to promote justice, religious liberty, the inalienable right to human life, and biblical conflict reconciliation
* To encourage, disciple and aid Christian students in preparing for the legal profession;
* To provide a forum for the discussion of problems and opportunities relating to Christianity and the law;
* To cooperate with bar associations and other organizations in asserting and maintaining high standards of legal ethics; and,
* To encourage lawyers to furnish legal services to the poor and needy, and grant special consideration to the legal needs of churches and other charitable organizations.” Source
These are neither “conservative” nor “liberal” principles as those terms are usually used here. They certain do not comport with the operational standards of the current “conservative”, “libertarian” or “tea party” movement, all of whom speak as if offering legal [or medical] services to the poor or needy is some sort of independent “collectivist” wrong. I think Hastings erred by denying recognition before the group actually began to function, at which time any actual problems could have been dealt with.
June 28, 2010, 4:56 pmzuch says:
I was elected treasurer of the Boalt Hall student chapter of the Federalist Society. And no, I didn’t abscond with their money….
Cheers,
June 28, 2010, 4:56 pmtheobromophile says:
Last I checked, the groups require that heterosexual members not engage in premarital (or extramarital) sex, have repented of any times that they have so engaged, and do their best to not do so in the future. For some reason, though, CLS members who happily admit to banging the entire football team aren’t filing lawsuits when they aren’t given leadership positions within the group….
June 28, 2010, 4:57 pmSupreme Court Rules Against CLS [Updated] at The Emerging Scholars Blog says:
[...] [ 5:00 PM]: Legal scholar Eugene Volokh appears to agree with David French that the ruling applies only Hastings’ “all comers” policy, and [...]
June 28, 2010, 5:03 pmBob from Ohio says:
Except the CLS is not a state sanctioned group at Hastings, the Muslim group currently is.
CLS being “unofficial” is protected but the Muslims are now at risk. They can’t exclude non-Muslims according to Hastings.
Gays is a red herring anyway. It is keeping non-believers out that is really the point.
June 28, 2010, 5:10 pmSbard says:
I was under the impression that nondiscrimination policies arose from the fact that official university recognition of the organization grants it access to funding paid for through student activity fees, and that as a consequence any student has a right to participate in any organization that they and their fees are, in effect, paying for. If the CLS wants university money to further its business, then it must allow all of the students of the university who wish to join the organization to do so.
June 28, 2010, 5:11 pmLester Livio says:
Beware of the law of unintended consequences! In short, Hastings (and the Court) want Christian, Muslim, Jewish, Buddhist and other religious students to be hypocrites; talk the talk but don’t you dare walk the talk!
I can’t wait to see the Muslim Students’ Association take over the Jewish Students’ Association and advance a more humane agenda towards Arabs and Palestinians oppressed by Israel.
June 28, 2010, 5:20 pmRPT says:
Here’s the text of the CLS email on the decision:
“This morning, the Supreme Court issued its opinion affirming the Ninth Circuit and remanding the case to the lower court.
The Supreme Court confined its opinion today to an unusual policy unique to Hastings College of Law. The Court ruled that a policy that restricts the right of all groups to require their leaders and voting members to agree with the groups’ beliefs may be applied to religious groups.
The Court did not address whether typical nondiscrimination policies, which are common on public university campuses, may be used to force religious student groups to allow nonbelievers to vote on their policies or lead their groups. Thus, the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), remains the leading case on this issue. It held that typical university nondiscrimination policies are viewpoint discriminatory when applied to religious groups.
While disappointed in the Court’s narrow ruling, we believe we will ultimately prevail on remand. The Court has given us the opportunity to show that Hastings’ policy is pretextual.”
Anything in error here?
Zuch:
I like your point; it’s based on actual experience rather than presumptions.
June 28, 2010, 5:20 pmDilan Esper says:
Well, that sure doesn’t seem inconsistent with Theo’s observation that, had a pro-choice feminist group been the plaintif, the desire to protect abortion rights might been a catalyst for a different result.
The problem is, we’ve had these sorts of student group cases with all sorts of parties, and the vote count is the same, with Justice Kennedy being the vote in play.
Whereas before the abortion protest cases, the rules imposed by the Court for protests were a lot more speech protective.
So I think you can say that abortion had something to do with the result in the protest cases; I don’t think you can say that about these cases.
June 28, 2010, 5:21 pmDilan Esper says:
I thought the ban was on those who participate in or advocate for homosexuality, so that a celibate gay person can join.
When I see these sorts of arguments, it reminds me of social conservatives who SWEAR that they can’t see any reason why people might think that they are homophobic.
Hint: “straight people get to screw but gay people don’t” is highly invidious discrimination.
June 28, 2010, 5:24 pmDilan Esper says:
As for the host of absurd arguments: people, learn the difference between the Old Testament and the New Testament. The shellfish arguments are a lot like saying that it’s unconstitutional to allow women to vote. The New Testament (and, please, actual Christians should help out here) made it clear that the old laws, which applied to Jews, were not applicable to Gentiles seeking salvation through Christ.
Theo, you have to take Christianity as it is actually practiced. And as actually practiced, there are a lot of folks who use the Bible– Old AND New Testaments– to make homophobic arguments. They also use it to justify sexism and patriarchy. In the past, they also used it to justify bans on interracial marriage, lynching, and slavery, although those arguments have fallen out of favor recently.
When you argue “that’s not Christianity”, it is no more persuasive than a devout Muslim saying about the Taliban “that’s not Islam”. It certainly isn’t ALL of the religion, as there are many diverse points of view within the fold. But it is one PART of the religion, and there are certainly a lot of people who call themselves Christians who will argue that they have it right and you have it wrong.
Indeed, that’s one of the many reasons why it’s perfectly clear that the belief-sets of organized religions are false, whether or not there is a God or Gods. It’s pretty hard to credit claims about Jesus being resurrected when the people running around peddling that belief can’t agree on basic matters that he supposedly espoused.
June 28, 2010, 5:30 pmptt says:
Someone with a lot of time on their hands and access to membership roles should set to work tallying the five decades of members of CLS and their official denominational affiliations (for those who had them). It would be interesting to see how many of those denominations now fall into the classification “non-believer” because they now allow for some recognition of same-sex couples. No, I’m not saying there are many, but I know there are some. CLS was formed as a broad Protestant Christian organization. Its original Statement of Faith is a big tent. However, the CLS board of directors’ Resolution on the Statement of Faith and Sexual Morality Standards in 1996 (of which the organization seems none too proud, as you have to be a member to see it) changed that.
CLS is a willing agent for, and victim of, the Culture War.
June 28, 2010, 5:34 pmArthur Kirkland says:
I disagree. If a group blocks a homosexual from membership for sexual immorality, but doesn’t block a serial fornicator, it is demonstrating that its asserted level of morality becomes actionable solely when gay sex is involved. In other words, it’s the “gay” rather than the “sex” that motivates the discrimination. Unless one is willing to believe that every heterosexual member of the Christian Legal Society is (1) married or (2) celibate (if not a virgin), the organization is full of hypocrites who mask their dislike of gays with a phony “religious” standard.
June 28, 2010, 5:37 pmLester Livio says:
This is viewpoint discrimination at its best: Homophobia is bad; while homophilia is great! Both are philosophical positions that are defensible, political correctness notwithstanding!
June 28, 2010, 5:41 pmArthur Kirkland says:
Would the CLS welcome a homosexual cleric? If not, can the issue be believer vs. non-believer?
This issue generates tough calls. Should the current members of the CLS be able to pull up the ladder and exclude Christians who disagree concerning homosexuality, treatment of women, the death penalty or any other issue? Should the CLS be safeguarded against being overrun? What about the Democrats or Republicans (who might be jeopardized if enough jerks tried to overrun the other party’s organization)? What if CLS changes and demands that members acknowledge that homosexuality is not only tolerable, but indeed God’s plan for everyone? What is the CLS demands that members take communion, or that members refrain from taking communion? Difficult questions develop in this area, at least in my judgment.
I generally favor inclusion. I attend Federalist Society events, by invitation. So far as I can tell, my participation has not corroded the organization, at least not yet.
June 28, 2010, 5:45 pmArthur Kirkland says:
Does anyone genuinely believe most heterosexual members of that group comply with the pledge — we are discussing 23-to-30-year-olds, for goodness sake — or that heterosexuals who do not are treated the way homosexuals who do not are treated? Does the organization monitor compliance? Or does it just put a roadblock up at the gate for homosexuals, while ignoring the sexual conduct of heterosexuals?
June 28, 2010, 5:53 pmjimM47 says:
A question of terminology:
Under the facts, as stipulated, the court analyzes CLS under its limited public forum cases, rather than its expressive association cases. Hastings’s policy must be view-point neutral, and the majority finds it to be.
My question is what we mean by view-point neutral.
Suppose a hypothetical policy reads: “students may use this public forum to express any message if and only if a majority of the student body agrees that the view-point expressed in the message should be recognized.”
Definition-1: This is view-point neutral because the policy itself does not deny privileges based on viewpoint.
Definition-2: This is not view-point neutral because the policy allows sorting of privileges by viewpoint.
Does the term “view-point neutral” mean definition-1? definition-2? Is there ambiguity between the two? And are there more specific names for these concepts.
June 28, 2010, 5:58 pmRPT says:
This is pretty close. Something about partisan leaven….
June 28, 2010, 6:00 pmyankev says:
And the dissent did an excellent job of showing the flaws oin Stevens’ opinion, including the undue deference shown to the university administration, and the willfull failure to notice obvious signs that the university had created a pretext that it was using to discriminate against an unpopular viewpoint under the guise of enforcing an anti-discrimination policy.
June 28, 2010, 6:03 pmyankev says:
Dilan, do you have a source that UCH was trying to respond to conservative criticism over balkanized student groups?
June 28, 2010, 6:06 pmyankev says:
Can you close the gap between your first sentence and your second? Were there statements by the universities, e.g., justifying these policies on the criticism of Merrs. Bllom and D’Souza?
June 28, 2010, 6:12 pmShelbyC says:
Is there any evidence that the group would treat a woman who happily admitted to banging the entire football team differently that a man who so admitted?
June 28, 2010, 6:15 pmyankev says:
As I understand it, CLS was denied recognition because inter alia CLS stated that CLS would not permit a non-believer to join, let alone run for office; the actual situation, as far as I can tell, never arose.
June 28, 2010, 6:20 pmjrose says:
Those are facts specific to this case. But in the general case, Stevens laid out the Volokh argument nicely: the anti-discrimination policy is motivated by the characteristics of prospective members, not by the beliefs of the student organization. Thus, any resulting expressive association burden on the organization is a disparate impact, not viewpoint discrimination which must be intentional.
Alito did not address this core Volokh argument.
June 28, 2010, 6:21 pmyankev says:
Given you oft-expressed contempt for religious beliefs of any and all description, why would you bother and why would anyone bother listening? But thanks for the nice examples of “Anyone who believes something I disapprove of probably believes everything that I disapprove of.”
June 28, 2010, 6:24 pmjiffy says:
I don’t think that’s evidence for much because the recent student group cases (since Healy) have all involved claims by religious groups. There’s plenty of evidence that the content of the speech at issue has a bearing on the Justices’ view of the case. In contrast to the religious student group cases in which the conservatives were generally taking “pro speech” positions and the liberals were more ready to accept government controls over speech, the two wings of the Court flipped those stances in cases like Regan, Rust, Rumsfeld v FAIR, and Morse.
This isn’t an indictment of the liberals; both wings of the court seem equally guilty.
June 28, 2010, 6:27 pmyankev says:
What do shrimp and cheesburgers have to do with anything? The Bible prohibits those foods to Jews and not to non-Jews whether Christian or otherwise. The same is true of requiring Sabbath observance, the laws concerning mixture of crops (same field, by the way, not adjacent fields) or any of the other laws that are unique to Israel’s special role.
June 28, 2010, 6:29 pmjrose says:
As I understand Eugene’s argument, it is the justification of the policy that determines whether it is viewpoint discriminatory. So, neither of your definitions work.
Why definition #1 fails: a policy is not viewpoint neutral, even though it does not directly deny privileges based on viewpoint, when the policy’s justification nonetheless is aimed at excluding a viewpoint. An example is your hypothetical in which the policy’s justification is the student majority should be allowed to exclude viewpoints.
Why definition #2 fails: a policy is viewpoint neutral if it is justified by something other than the organizations viewpoint even though it has the result of sorting privileges by viewpoint. CLS, under the anti-discrimination (not the all comers) policy is an example.
June 28, 2010, 6:34 pmRPT says:
I would disagree with the membership exclusion. If someone wants to come to your meeting, and you really believe in your principles, and you also have the ability to converse intelligently with someone who doesn’t, without offending, which does no good, what’s the problem? One of the most offensive characteristics of some modern political promoters, i.e. Palin, is the refusal to go anywhere there is anyone with whom she doesn’t already agree, or to enter into real conversation. It’s all one way sound bite/tweets. That converts no one.
June 28, 2010, 6:34 pmyankev says:
Thank you. I have often wondered why liberal Christians and liberal atheists think that it shows open mindedeness to support their arguments by ridiculing Judaism (or more often, as Arthur does here, their own ignorant misconceptions of Judaism).
June 28, 2010, 6:34 pmArthur Kirkland says:
If a group were entitled to discriminate against gays for being homosexual, could or would it claim entitlement to discriminate on race? Or gender? Or position on the death penalty? Or position on undeclared, unprovoked war? The questions seem relevant, regardless of the answer.
June 28, 2010, 6:39 pmyankev says:
Two major Orthodox Jewish organizations and the Agudah filed amicus briefs in support of CLS, urging the absurdity of prohbiting religious organizations from limiting membership and leadership to members of the religion.
The majority decision makes it impossible to manintain any official campus group that holds an unpopular view; those who hold the popular view can simply join the organization and elect leaders who will disband, coopt or otherwise destroy the group. What a wonderful victory for the rights of the minority.
June 28, 2010, 6:44 pmDilan Esper says:
Suppose a hypothetical policy reads: “students may use this public forum to express any message if and only if a majority of the student body agrees that the view-point expressed in the message should be recognized.”
This would be viewpoint based.
The policy at issue is viewpoint neutral because (assuming the truth of the parties’ stipulation regarding the enforcement of the policy), it applies to any student group that is funded and any student who wishes to join, no matter what the viewpoints of the group or the student.
In contrast, anything that takes someone’s viewpoint into account in a funding decision would be subjected to a higher level of scrutiny.
June 28, 2010, 6:48 pmjrose says:
That’s a fair point, but couldn’t this argument be made on an as-applied basis only for groups which have been infiltrated?
June 28, 2010, 6:50 pmDilan Esper says:
Dilan, do you have a source that UCH was trying to respond to conservative criticism over balkanized student groups?
I don’t have the legislative history of the HCOL decision. But I do remember, in general, these open access rules being enacted by schools that were concerned about balkanized student groups after that concern had been raised by some conservative authors (as well as some liberals as well), and that this was going on when I was an undergraduate and then in grad school. Whether or not this specific policy was enacted in this context, similar policies definitely were.
June 28, 2010, 6:50 pmptt says:
The problem is not so much the leaven as the dough.
ahem
June 28, 2010, 6:51 pmDilan Esper says:
Is there any evidence that the group would treat a woman who happily admitted to banging the entire football team differently that a man who so admitted?
No. But I bet they’d love to have the jock who is popular with all the cheerleaders as a member. :)
Remember, conservative Christians view open polyandrous female sexuality in much the same way as they view male homosexuality, and differently than they view male heterosexuality. Patriarchs get favorable treatment in a patriarchy.
June 28, 2010, 6:53 pmShelbyC says:
Why not? It’s perfectly understandable for a group whose purpose is to represent the interests of, say, asians to not want their leadership taken over by non-asians who might not be able to represent the interests of asians very well.
June 28, 2010, 6:53 pmyankev says:
The problem is not in letting them attend the meetings (and is there any evidence they would not be allowed to) but in giving them a vote and a voice in running the organization.
June 28, 2010, 6:54 pmyankev says:
Wouldn’t it be too late at that point?
June 28, 2010, 7:00 pmyankev says:
So you keep saying. Are you familiar with the term post hoc ergo propter hoc?
June 28, 2010, 7:01 pmShelbyC says:
All the cheerleaders? :-)
June 28, 2010, 7:02 pmMark Field says:
This is actually a very contentious issue within Christianity. As Dilan noted, many of the most offensive arguments made by Christians (e.g., in defense of slavery) were based on provisions found only in the Old Testament.
June 28, 2010, 7:08 pmMark Field says:
That’s pretty much the case in all “as applied” challenges.
June 28, 2010, 7:09 pmjrose says:
No. The infiltrators are thrown out and the organization is just fine.
June 28, 2010, 7:21 pmjrose says:
How about a White Supremacy group? They have an expressive association right to exclude blacks, but does a public university have to recognize such a group?
June 28, 2010, 7:29 pmShelbyC says:
Well, I’m not sure to what extent viewing a certain admirablity in male promiscuity while discouraging female promiscuity helps men. I always figgered female promiscuity was discoraged because it is too easy. After all, nobody views men who, say, frequent many prostitutes in a positive light.
June 28, 2010, 7:29 pmShelbyC says:
I’d say that once the University decides that the students will pay for expressive association collectively, they have to allow all viewpoints to be expressed, and not just the ones who can command a majority of the group membership.
June 28, 2010, 7:38 pmManju says:
Regarding Bloom, since I understand no one who bought the book actually read it, I don’t recall him ever criticing schools for funding the groups. The book was written before the term PC even arrived (at least he ddoesn’t use it) and there was very little critisim of actual university policy. The closest he comes to going after a student group was mentioning actual threats of violence by one such balkanized group at cornell in ’69. His focus was more on the philosphical roots of such groups, ie what ideas in the culture lead to their creation. And then full stop. D’Souza is more focused on specifc acts of censorship by the groups, and I think most liberals at this point conceed at least that the phenomina existence, after some inital resistence.
The long short of Bloom is that these groups, while advertised as a great opening, are really a great closing. Although they seem to open the campus to a new non-western diverse voivces, their philopshical foundations are actully thmeselves eurocentric, ie represent a very narrow strand of western philopshical thought.
so the new voices themselves view women and poc thru a particlar western leftist lens, what he calls the nietzshization of Marx, a combination of Marx’s epistemology (class analysis expanded out to race and gender) while dropping the determinism for relativism…which itself undermines the liberal university becaue the enlightment project then becomes impossible.
In pop culture you can see the effect of this narrowness advertised as openess thru the concept of “false conciousness”, invented by marx to explain how, if his worldview is the best interests of the working class, why they reject it? So when prof wendy donniger at the U of Chic (of all palces) said of sarah paln: “Her greatest hypocrisy is in her pretense that she is a woman,” a charge pop-feminist Jessica Valenti recently echoed, a huge group of individuals get reduced to a narrow set of authentic values. Diversity here means tolerance for ideas that promote diversity, as determined by the tolerant.
The emergence of a censorous regime from there is quite predictable.
June 28, 2010, 7:39 pmjimM47 says:
I have difficulty squaring that with the court’s holding here. There is little jump from “only if a majority of the student body agrees that the view-point should be recognized” to “only if a majority of students who show up to vote agree” to “your message is determined by a vote of all-comers” to “the leadership that determines your message is determined by a vote of all comers.” CLS’s argument was that no matter what the viewpoint of a group is, it is subject to a heckler’s veto if the hecklers can rally more participants than the group can.
June 28, 2010, 7:53 pmDavid Schwartz says:
Of course, but things have to be this way. You are legally welcome to believe that people who work on the Sabbath should be stoned or that God wants white people to have black slaves. However, if you wish to hold these kinds of beliefs, the law demands you not act on them. A right to act on a belief simply because you hold it as a religious belief would be a right to do pretty much anything provided one had the right religious ideas in one’s head.
June 28, 2010, 8:16 pmjiffy says:
This was the boogey-man that CLS and its amici sought to raise in the briefing, but apparently no one could find more than one example of such a thing ever happining in the history of higher education student organizations. As the majority opinion points out, groups that are really concerned about being hijacked can take plenty of steps to protect themselves (such as requiring that students attend some number of meetings before they are eligible for membership). To the extent they haven’t, it suggests that the concern is more rhetorical than real.
June 28, 2010, 8:16 pmjrose says:
I just noticed Eugene is referenced twice in the opinions:
1) by The Court (Page 15) in noting his hypothetical (can a public university require recognized student organizations to have only student members).
2) by Stevens in support of why the anti-discrimination policy is viewpoint neutral (Page 3 – footnote)
June 28, 2010, 8:17 pmPhil says:
The opinion cites “See, e.g., Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919, 1940 (2006).”
June 28, 2010, 8:34 pmArthur Kirkland says:
CLS’ argument also was that a Christian whose religious beliefs incline acceptance of homosexuality (consequent to a fair reading of teachings ascribed to Jesus) should be excluded from participation in a Christian organization on the basis of religious belief. The “pull up the ladder” issue seems worthy of consideration, particularly if organizations begin to require or prohibit certain positions on the death penalty, abortion, homosexuality, inheritance taxes, or devotion to the Red Sox.
Infiltration is a problem worth considering, too, particularly with zealots who prize results over honesty and fairness. The members of one political party change registrations and overrun the other party’s group, then use group funds to invite inapt speakers while issuing counterintuitive endorsements. Is there a method, other than adult supervision from the institution, of preventing such shameful conduct?
Someone’s ox is going to be gored by any arrangement. Drawing the inevitable line in a manner that disinclines bigoted discrimination provides some advantages.
June 28, 2010, 9:08 pmShelbyC says:
And the counterargument cuts both ways. A Christian group who doesn’t think gayness is immoral can’t keep the anti-gays out.
June 28, 2010, 9:40 pmRobertL says:
It’s going to get interesting if a large number of heterosexuals join a University’s Gay Student Association, nominate and vote into leadership positions all their hetero buddies.
June 28, 2010, 10:43 pmJeremy Pierce says:
I can testify from first-hand experience with involvement in something like eight evangelical campus ministries and close friends involved in something on the order of 20-30 different evangelical campus ministries. The major reasoning behind limiting group membership and leadership has nothing to do with limiting participation. Most of these groups welcome atheists, theologically-liberal Christians, heretics, lapsed Christians practicing the religion of fraternity life, radical Marxist liberation theologians, and so on. They seek to serve their needs and offer them the opportunity to experience Christian fellowship from within a Christian ministry group.
On the other hand, voting membership and leadership are worth restricting to those who actually agree with the mission of the group. One huge problem with most of the analysis here is that it conflates voting membership with group participation. Showing up at meetings from time to time isn’t the same thing as belonging to a group as a member who fully agrees with the statement of faith. It’s insane to expect a group to allow those who strongly disagree with their key views into the latter category, and it’s no argument against that to point out that it’s also a good idea to accept those who disagree into your midst to facilitate interaction with those who disagree. Of course that’s a good idea, but it’s a very bad idea to think that implies letting them be voting members or, even worse, spiritual leaders of a group whose views they flatly contradict. It’s simply crazy to think freedom of religion is compatible with such an expectation.
It’s also very clear to me from witnessing how several evangelical college ministries have dealt with sexual immorality that they consider heterosexual sex outside of marriage to be a very serious offense. I know of one group that removed three couples from leadership because of sexual immorality (i.e. sex outside marriage). I believe at least one of the couples was engaged. These were all repentant couples, by the way, not unrepentant ones. I know of another group that allowed a leader who considered himself gay but thought that acting on his homosexual sexual attraction would be wrong. These ministries were part of the same national ministry but at different campuses (but campuses within 30 miles of each other).
June 28, 2010, 10:46 pmJE says:
At issue in this case was not merely a government subsidy but equal access to facilities offered for the benefit of law students. It’s not just about forcing government to subsidize unless providing a forum itself can be a form of subsidy (which can be more costly to the government than cash). However, this decision allows Hastings to effectively give CLS the boot and the muzzle because of their Dale-like associational speech, not just cut off funds, and it seems to stand for the proposition that groups may be denied access even by a sham all-comers policy (wasn’t the suit, like most discrimination cases, about more than one discrete point in time?).
We ran into a comparable issue in Minneapolis reported here: http://www.startribune.com/local/97174559.html“. A gay pride festival leased a public park and wanted to bar a Christian from handing out Bibles or speaking against homosexuality (though he was welcome to come, the group did not want him doing or saying those things). Applying CLS, it seems the discrimination by the GLBT group would have given the City the right (if it so desired) to bar the GLBT group from using the park because it attempted to exclude people based on, among other things, desire to hand out the Bible (i.e. based on religion), in effect making it so Christians could meet there but not the GLBT group. In effect, any group that discriminates may itself be discriminated against in the name of fighting discrimination, and that policy can be applied in a discriminatory fashion.
June 28, 2010, 11:00 pmtheobromophile says:
As someone who will fall into that age bracket for a few more months, I’m here to tell you that yes, it is entirely possible (and actually, not that hard) for heterosexual, healthy 20-somethings to not fuck. Also, I know I’m not the only one: most of my friends in law school were/are chaste, even in serious relationships.
I’m also here to point out that, contrary to the usual ad hominen attack of chastity being a patriarchal value imposed solely upon women, the conservative and Christian people that I know are equally contemptuous of men who lack the capacity and willingness to keep it in their pants. Also, last time I checked, there’s no shortage of men out there who are more than happy to be around sexually active women; their mentality is not to chastise us to keep a dime between our knees, but rather to beg us to pretty please empower ourselves by enjoying our (hetero)sexuality – with them. Just a reality check.
June 28, 2010, 11:06 pmShelbyC says:
The Tribune says that the ban remains in effect for now. Now, somebody help me out here, that’s just flat wrong, right?
June 28, 2010, 11:23 pmArthur Kirkland says:
As it should (cut both ways).
June 28, 2010, 11:46 pmjimM47 says:
A lot of law students comply with that pledge, whether they are in CLS or not. Involuntarily, I should hasten to add.
June 29, 2010, 12:01 amArthur Kirkland says:
Possible? Yes. Likely? No. Regardless of what they say. If a student organization includes 10 or more members, you can earn a mansion in Greenwich (next to those of the guys who are counterparties to trades involving most self-directed retirement accounts) betting that some of them are sexually active.
Cf: The private behavior of prominent “family values” scolds. Or the annual arrival of Catholic girls school graduates at orientation fraternity parties (coming soon at a campus near you).
I have encountered no evidence that those who claim to be guided by Christianity or any other religion are one degree more (or less) moral in their conduct than are others, and that includes sexual conduct.
June 29, 2010, 12:05 amElais says:
That’s funny. I was talking to a pastor of a small, progressive church and he was telling me how conservative christian groups would join progressives churches and attempt to undermine them from within. That surprised me very much.
June 29, 2010, 12:21 amDilan Esper says:
As someone who will fall into that age bracket for a few more months, I’m here to tell you that yes, it is entirely possible (and actually, not that hard) for heterosexual, healthy 20-somethings to not fuck. Also, I know I’m not the only one: most of my friends in law school were/are chaste, even in serious relationships.
When Theo says something like this, you wonder how clueless a person could possibly be.
Think of this way. Suppose you had a “chaste” 30 year old friend. Now, suppose further, you met this hot person and you made love all night in 15 different positions and 3 difference orfices. Then you made love all day the next day.
Now, would you tell the “chaste” friend about that?
In any event, the substantive comment I would make is this. Theo can make whatever rules she wants for her own life. But she has no business telling other people how “easy” or beneficial it would be to follow her rules. What is “easy” for her may well be a non-starter for other people.
June 29, 2010, 12:36 amJamie Ward says:
This is what is wrong with America’s youth. You didn’t bother to read it?
If you had, you would find that no groups are being forced to admit members. The students are still free to associate with whomever they please. However, if they accept the universities money, they must conform to the rules that go along with that money.
June 29, 2010, 12:54 amrpt says:
But things never go that far. It still seems too speculative on both sides.
June 29, 2010, 12:56 amKen Arromdee says:
Why would they do that? This sort of thing is generally done by 60′s-style activists, who are associated with the left, while anyone who’d want to do this would probably be on the right.
June 29, 2010, 1:34 amKen Arromdee says:
You’re missing the distinction between repentant versus unrepentant. If a group blocks an unrepentant homosexual but allows in a repentant fornicator, they are not being hypocritical.
(Alternatively, they could block fornicators, whether repentant or not.)
June 29, 2010, 1:39 amReaderY says:
Given the Court’s prior cases holding that the First Amendment requires public universities to give religious and certain other expressive groups some access to their facilities and some assistance, hopefully there will be a clearer intermediate status category label for groups which are entitled to this level of assistance but not full “recognition”.
At present, the distinction between the two seems a bit unclear. Clearly the group remains entitled, under previous precedents, to access.
It would appear to be in roughly the same category as the student group in Lesbian and Gay Student Association v. Virginia Commonwealth University, where VCU considered the group to be engaged in crime-facilitating speech and banned it on the basis of Virginia’s sodomy law. The 4th Circuit required VCU to permit the group to meet on campus — although it also upheld certain restrictions on it which other groups weren’t subject to.
June 29, 2010, 1:47 amBobVB says:
Isn’t an important aspect of this that no groups are excluded from participation on campus, and the school has every right require certain qualities in it’s official groups? Official groups represent the school and doesn’t it have it’s own right of association as long as no groups are excluded from campus participation?
June 29, 2010, 2:08 amOrson says:
“The Court concludes only that this policy is constitutional; it does not directly opine on whether it would be constitutional for the university to have a policy that only bars discrimination based on race, religion, sex, sexual orientation, and the like (and that thus lets groups discriminate based on other criteria, such as a student’s beliefs that do not fall within the rubric of ‘religion’).”
I know this is a subtlety. But I have to say it is wrongly decided based upon my experience as an atheist, seeing fundamentalists ruin our meetings.
In the early 1980s, our University of Minnesota group “Atheists and Freethinkers” founder meetings ruined by Fundies because they’d say “The Bible says…” everytime we’d say a non-Revealed point.
It is pointless to have a groups for Atheists and Freethinkers if the superstitious cannot be excluded.
The groups meetings eventually died; we took it elsewhere. LEgal relief would have been a nice option, which we did no pursue. THIS case is wrong on its face, based on this experience.
June 29, 2010, 5:14 amDavid M. Nieporent says:
When Dilan says something like this, you wonder how clueless a person can possibly be. Look, if you don’t think there’s any moral component to sex (or, at least, voluntary non-commercial sex between consenting adults), you don’t think that. You can make whatever rules you want for your own life. But please don’t pretend that your views are somehow universal, that unrestricted sex is the most important thing in everyone’s life. It is not a “non-starter” for anyone not to have sex. They may choose to have sex the same way other people choose other activities; they are not forced to.
June 29, 2010, 7:46 amjrose says:
I believe the distinction between these two cases is that the university setting is considered a limited public forum, whereas a public park is a public forum. In the latter, the state usually cannot burden expressive association. In the former it can if it remains viewpoint neutral.
So, while CLS might lead us to conclude Minneapolis would not engage in viewpoint discrimination (if it chose to bar the GLBT group), it would have nonetheless impermissibly burdened its expressive association. In contrast, Hastings burdened CLS’s expressive association, but was permitted to do so in its limited public forum.
June 29, 2010, 7:56 amShelbyC says:
Hell yes. I’d tell everybody I could manage to corner. But hey, that’s me. But all she’s trying to do is respond to Arthur’s assertion that it’s unbelievable that a bunch of law school students would keep their zippers up. On the factual question I tend to come down more on Arthur’s side (aside from involuntary chastity, of course), but hey, what do I know. But I didn’t think Theo was condemning anybody else for what they do. This thread’s had you doing most of the condemning.
June 29, 2010, 8:32 amtheobromophile says:
Dilan’s forgetting, or did not know, that I went to a very conservative law school, with a lot of married folk and evangelical Christians, in a town with (no joke) about five times as many churches as bars. It’s a far cry from the way people live their lives in Southern California.
Furthermore, I was usually the one found making out with boys at parties, and, after my four-boys-in-three-weeks pace that I set 1L year, I don’t think that anyone was going to start thinking that I would get on their case for being sexually active, even if I didn’t go home with my smooching partners.
June 29, 2010, 8:58 amMartinned says:
Actually, slavery isn’t a very good example:
Ephesians 6:5
June 29, 2010, 9:36 amMartinned says:
How does this:
Connect to this:
?
You seem to agree that sex isn’t a matter of morality (which it isn’t), and yet you don’t seem to agree. Which is it?
June 29, 2010, 9:40 amtheobromophile says:
Martinned: David Nieporent was satirising Dilan’s comments to me – comments which (erroneously) indicate that it’s well-neigh impossible for a healthy twenty-something to voluntarily turn down sex.
June 29, 2010, 10:26 amtheobromophile says:
Martinned: the entire passage is here:
(NIV)
That is hardly a defence of slavery; it’s an admonition to Christ’s followers to hold themselves to the highest standards of conduct, to be a witness to the religion through one’s actions, and to realise that there is an eternal life beyond Earth for which Christians must prepare themselves daily.
June 29, 2010, 10:49 amRandy says:
Yankev: “What do shrimp and cheesburgers have to do with anything? The Bible prohibits those foods to Jews and not to non-Jews whether Christian or otherwise.”
Christians cite Leviticus when they say homosexuality is wrong for everyone, jews and gentiles alike.
And it’s hardly absurd that orthodox jews should be allowed to accept non-believers in their midst. When I was in school, I tried to participate in as many religions as I could to learn about them. I wasn’t trying to be converted, but I just wanted to compare their rituals and beliefs. Why should I be excluded if they are all campus organizations? Not to mention the very real possibility that student organizations are great ways to find dates. Some people might think orthodox jews are hot and want to find them.
It is true that the notion of having students over take and over run an organization are overblown. It’s quite simple to limit voting requirements to those who have actually attended X number of meetings or helped out with various causes. Few students are really that dedicated to ruining someone else’s party.
All organizations should be open to all if they receive student funding, if for no other reason than transparency. All the arguments against it are from religious people who really only want true believers as part of the organization. You can certainly have that when you grow up and enter the real world. But in the student world, it’s really a small price to pay for equality.
And if some straight guys really want to take over the Gay Student Association for god knows whatever reason, I say more power to them. They just better not squeal when they get their asses grabbed.
June 29, 2010, 11:03 amRandy says:
And yes, I certainly believe that the CLS was trying to enter the ‘culture war’ and create a precedent to exclude gays. This is taking a page from the Scalia strategy — start with a simple case that is fairly narrow, then use it to expand. Obviously, had they won this case, it would have engendered a slew of challenges to various gay rights laws.
And of course Dilan is right when he says it’s the same old “we poor religious people are being discriminated against.” Yankev apparently agrees, since he argues that this affects the religious organizations and prevents them from discriminating.
June 29, 2010, 11:09 amMartinned says:
I read that. I was just intrigued by the question of whether sexuality is a moral issue.
Just like the old testament requirement that we “shall not suffer a witch to live” implies that there is such a thing as witchcraft, a new testament command that slave owners should be nice to their slaves implies that slavery, as such, is allowed. To say otherwise requires arguing from “the spirit” of the text against “the letter”.
June 29, 2010, 11:17 amjrose says:
I don’t see obvious other cases.
June 29, 2010, 11:18 amStan says:
Huh? You’re either joking or you are not using the phrase “hardly a” in its colloquial sense, as “not.”
June 29, 2010, 11:25 amtheobromophile says:
100% wrong; it merely implies that it exists. This is when someone about ten years my junior would say “Epic fail”.
June 29, 2010, 11:29 amStan says:
When you take Caesar’s money, you must render unto Caesar.
June 29, 2010, 11:29 amStan says:
I think you are obtuse. If the bible gives direction for how to be a slave or a master, then it does more than imply slavery exists.
June 29, 2010, 11:33 amMartinned says:
Christians were already so different from the rest of Roman society. If slavery was wrong, surely St. Paul would have admonished his flock not to own slaves and to manumit the slaves they already had? (Not to mention urging Christians who were slaves to escape their fate by whatever non-violent means were available to them…) I see no way to read this passage except as an endorsement of slavery.
June 29, 2010, 11:35 amMartinned says:
Why not? From what we will colloqially call freedom of association in an education setting, you can obviously make a step to association in other contexts (though we already have the Boy Scouts of America case) and to freedom of contract cases like that Albuquerque wedding photographer.
June 29, 2010, 11:39 amtheobromophile says:
Stan: you “think” it so implies, but it’s not a logical consequence of that. Martinned illogically jumped from “says do to X in Y situation” to “therefore, Y is good”. (Matthew 19:3 also addresses this issue.)
The Bible is riddled with examples of times in which Christians are asked to act a certain way in response to situations (e.g. to turn the other cheek when slapped), but those are hardly an endorsement of doing those things to other people, or even having them done to you. Furthermore, I’m always amused at the anti-Semitic vein that flows through these arguments: aside from the fact that the Torah is far more brutal (especially with regards to its treatment of slaves) than is the New Testament, the Israelites were slaves to the Egyptians – and, by your reasoning, Jewish law would say that it’s totally okay for Jews to be enslaved.
By the way, religious scholars, what’s your take on Galatians 3:28?
June 29, 2010, 12:13 pmjrose says:
What cases involve a group being denied a government subsidy? The wedding photographer seems off point.
June 29, 2010, 12:57 pmyankev says:
By definition, a Jew who sees nothing wrong in dating a non-Jew is not Orthodox.
First, there is a distinction between non-believers and non-Jews. Second, I think you mean forced, not allowed. Outlawing Orthodox Jews from making distinctions between Jews and non-Jews is, for reasons to numerous to go into here, outlawing Orthodox Judaism. Many nations have done so or tried to do so in the name of national or social unity. Historically we have found ways to resist those bans or we have left. Those who stayed generally melted into the general non-Jewish population and ceased to be Jewish, which of course was the goal of the ban. Spain and Portugal come to mind, among other places.
June 29, 2010, 1:21 pmptt says:
Christian Legal Society v. Walker in 2006. They won that one.
http://www.nsba.org/MainMenu/SchoolLaw/Issues/StudentRights/RecentCases/ChristianLegalSocietyvWalkerNo0532397thCirJuly102006.aspx
June 29, 2010, 1:23 pmptt says:
I’m always surprised how far some expect the Bible to go to prove “defense” of slavery and how little they require when determining that others are “celebrating” this, that or the other.
[not necessarily you personally]
June 29, 2010, 1:30 pmjiffy says:
The next case would have been a challenge to Title VI and/or Title IX.
June 29, 2010, 2:01 pmjrose says:
ptt – that case is almost an exact match to the current one. That doesn’t strike me as what Randy is afraid of (“a slew of challenges to various gay rights laws”).
jiffy – I don’t see how losing this case would have put Title VI or IX at risk. Additionally, neither is a “gay rights law”.
June 29, 2010, 2:14 pmDilan Esper says:
When Dilan says something like this, you wonder how clueless a person can possibly be. Look, if you don’t think there’s any moral component to sex (or, at least, voluntary non-commercial sex between consenting adults), you don’t think that. You can make whatever rules you want for your own life. But please don’t pretend that your views are somehow universal, that unrestricted sex is the most important thing in everyone’s life. It is not a “non-starter” for anyone not to have sex. They may choose to have sex the same way other people choose other activities; they are not forced to.
When David says something like this, you don’t have to wonder– you can see that his claim to be “smarter than Barack Obama” is one that any objective observer would laugh at.
Seriously, where did I say that Theo or anyone else who instills sex with a “moral component” wasn’t free to live his or her life the way that he or she pleases? My whole point is that celibate moralists shouldn’t assume that the rest of the world can straightforwardly live by their rules. Everyone gets to define sex the way they want to. This, however, in David Nieperont’s “smarter than Barack Obama” mind, gets warped into some sort of restriction on their freedom.
Your the first libertarian in history who doesn’t even know the MEANING of freedom, David.
June 29, 2010, 2:23 pmDilan Esper says:
Dilan’s forgetting, or did not know, that I went to a very conservative law school, with a lot of married folk and evangelical Christians, in a town with (no joke) about five times as many churches as bars. It’s a far cry from the way people live their lives in Southern California.
Theo, I grew up in a bedroom community, a sleepy little suburb of L.A. where nothing much happens.
After I left town, the PTA mom who became mayor and who had the perfect life, with the successful husband and the kids and the “woman of the year” awards and everything else, was caught in a raid with her drug-dealer boyfriend and a bunch of dope in her garage while the children slept in the house.
There are a lot of secrets in towns like yours, Theo, and the celibate girl or boy is going to be the last person to learn of them.
June 29, 2010, 2:26 pmDilan Esper says:
Martinned: David Nieporent was satirising Dilan’s comments to me — comments which (erroneously) indicate that it’s well-neigh impossible for a healthy twenty-something to voluntarily turn down sex.
Theo has a reading comprehension problem. I said that assuming that she turns down sex, that fact doesn’t prove that anyone else should, would choose to, or would think that sex is worth turning down, or that those who don’t turn it down are wrong and she is right.
June 29, 2010, 2:29 pmscc says:
Gal 3:28 says “There is neither Jew nor Greek, there is neither slave nor free, there is neither make nor female, for all of you are one in Christ Jesus.” Paul’s thinking is primarily eschatological: it’s about how things will be when Christ returns. As a result, Paul was not much interested in reforming secular arrangements (cf. 1 Cor 7), because he expected Christ to return soon and wipe away human institutions and distinctions. Nevertheless, he did expect fellow Christians to exhibit some of this future reality in the present. Thus, he could counsel Philemon to manumit his slave Onesimus because both were Christian (Philemon 16).
Later Christian thinking did not so strongly expect the imminent return of Christ and consequently saw the mission of the Church as reforming the world to progressively reflect the Kingdom of God on earth. The 19th century abolitionists were very much in this vein of thought.
June 29, 2010, 2:29 pmDilan Esper says:
That is hardly a defence of slavery; it’s an admonition to Christ’s followers to hold themselves to the highest standards of conduct, to be a witness to the religion through one’s actions, and to realise that there is an eternal life beyond Earth for which Christians must prepare themselves daily.
Well, it isn’t exactly Jesus saying “you have to free your slaves, for it is harder for a camel to thread the eye of a needle than for a slaveholder to enter the kingdom of heaven” either.
June 29, 2010, 2:30 pmDilan Esper says:
100% wrong; it merely implies that it exists. This is when someone about ten years my junior would say “Epic fail”.
I think Theo accurately summarizes contemporary Christian opinion on the issue.
What’s funny is how ahistorical it is. In the past, this same passage certainly WAS used by many Christian denominations (particularly the Southern Baptists who were the intellectual forbears for her brand of evangelical Christianity) to justify slavery. In other words, a classic example of how human beings can interpret the Bible (the alleged clear teachings of Jesus) to justify any position they choose to take, and how the religion (supposedly eternal truth) changes over time.
June 29, 2010, 2:33 pmDilan Esper says:
The Bible is riddled with examples of times in which Christians are asked to act a certain way in response to situations (e.g. to turn the other cheek when slapped), but those are hardly an endorsement of doing those things to other people, or even having them done to you.
This is horrible reasoning. Turning the other cheek involves something SOMEONE ELSE DOES TO YOU. And then you react by turning the other cheek. It isn’t an endorsement of whatever it is that someone else did to you that causes you to have to turn the other cheek.
But slavery is something YOU ARE DOING TO SOMEONE ELSE. So when the author says “treat your slaves well”, it’s not taking as a given someone else’s evil actions, but your own. Which does very much imply that he thought that as long as you treated your slaves well, it was OK.
As I said, Theo has summarized how contemporary Christians argue around this. And that’s fine– I’d rather have Christians arguing against slavery than for it. But it is a clear workaround, and a classic example of religious wishful thinking. The obvious conclusion is that Christianity was wrong about slavery, but believers don’t want to admit that the Bible is wrong about anything (because they certainly don’t want to confront the possibility that the Bible is wrong about their alleged immortality!), so workarounds are very important.
June 29, 2010, 2:39 pmptt says:
I wasn’t paying much attention to the back and forth, I just noticed your mention of other cases and I knew there was at least one.
I think Randy is correct in his expectations. Had this gone the other way, every CLS chapter would have immediately sought exemption. I don’t think, however, this would have led to a lot of lawsuits. The schools would have just capitulated to the demands.
Now, if some student groups started officially excluding people on religious grounds (which is really what the CLS case is about, though it looks gay-rights-related to most folks) and banning Jews or Muslims or whatever, then there might be more lawsuits. And when I say “if”, I mean “when”, cuz it would happen.
June 29, 2010, 2:51 pmjiffy says:
CLS’s arguments did not depend on whether or not the challenged policy was a “gay rights law.” It claimed that conditioning government financial support on membership non-discrimination violated its constitutional right to expressive association. The same argument could apply to Title VI and Title IX in various contexts.
June 29, 2010, 2:59 pmjrose says:
Yes, but I wouldn’t charcaterize that as a “slew of challenges to various gay rights laws” which I took to mean that sexuality-based anti-discrimination statutes would generally be at risk.
June 29, 2010, 3:37 pmtheobromophile says:
Why evil, Dilan?
Slavery in ancient Rome was a far, far cry from slavery in America. Aside from the fact that it was not race-based, it was often used as a punishment for various crimes (such as theft). So the Ephesians passage in question could very well mean, “See that person over there, who stole something from you and is obligated to work as your servant to clear his debt? Treat him well.”
Oh, yeah, that’s just entirely wrong. (Rolls eyes.)
Furthermore, you – and every other anti-Christian out there – willfully ignores anything that is contrary to your blind ideology. The entire freaking religion is based around the idea of equality: all humans are of infinite value. I can’t be sure without a Bible in front of me, since I don’t know it that well, but I’m almost certain that every single New Testament book includes something to that effect. Explicitly. So when you can interpret a passage to mean A or B, but A is precluded by the rest of the Bible, sorry, you’re stuck with B.
Oh, and again, with the anti-Semitism. Judaic religions have yet to renounce the Torah, which says that you can beat your slaves and rape them, so long as you don’t do permanent damage or rape a slave who is betrothed to another. So if Ephesians is “evil”, I really want to know what Judaism is.
June 29, 2010, 3:46 pmjrose says:
In what contexts has this argument been made against Title VI and IX?
June 29, 2010, 3:48 pmDilan Esper says:
Furthermore, you — and every other anti-Christian out there — willfully ignores anything that is contrary to your blind ideology. The entire freaking religion is based around the idea of equality: all humans are of infinite value. I can’t be sure without a Bible in front of me, since I don’t know it that well, but I’m almost certain that every single New Testament book includes something to that effect.
Theo:
1. I am not “anti-Christian”. I am agnostic. That means that I think ALL organized religions make ridiculous unsupported claims. But I don’t think, for instance, that Christians are any worse than Muslims or anyone else in this regard.
Also, in that same regard, it isn’t “anti-Semitic” to criticize the beliefs of some Jews. I happen to think that Orthodox Judaism is dead wrong on gender issues, and that Judaic claims about God are wrong. I also think that the belief held by some Jews that God gave them the West Bank is pernicious. None of this means I hate Jews or want to discriminate against them. You need to learn the definition of terms before using them.
2. You are way, way off, in a number of ways, about Christianity and equality. First, historically, Christianity did not take that position. From claims about blacks having the mark of Cain to justifications for slavery to all sorts of justifications for torturing and killing nonbelievers, obviously someone missed the equality message that you claim is readily apparent.
Second, even now, many major denominations of Christianity stand for inequality. Wives are supposed to submit to their husbands, for instance. And gays should be treated as second-class citizens.
Again, if your religion is “all about equality”, apparently a lot of your fellow Christians haven’t gotten the memo.
Or maybe, just maybe, it’s a lot easier to interpret Christianity as permitting or requiring inequality than you admit.
June 29, 2010, 3:59 pmtheobromophile says:
For heaven’s sake, Dilan. Try understanding something before you criticise it. First, no one is saying that the religion changes over time, just that society does. Obviously.
Second, that something can be twisted around by humans does not mean that it’s wrong; you don’t judge objective truth that way. As one example: you claim that being pro-life is incompatible with feminism, despite the fact that the early suffragettes were pro-life. So, either your definition of feminism is warped, or it doesn’t represent a universal truth.
June 29, 2010, 4:00 pmDilan Esper says:
Theo:
1. *I* am saying that religion changes over time. Because it does. The mainstream beliefs of Christians from 500 years ago are completely alien to what you believe. Not just with respect to slavery, but with respect to a ton of other things as well. Things that were thought to be obvious then are considered ridiculous now.
2. The problem isn’t that things can get twisted around by humans, it’s that if things get twisted around by humans, that generally infects the entire enterprise with unreliability. To put it another way– no Christian living now has any idea whether Jesus was actually resurrected. None at all. Because things have changed and warped and altered so much over the course of 2,000 years, and so many beliefs discarded, added, and modified, that modern Christianity, while the descendant of early or middle-ages or rennaisance Christianity, is fundamentally different. That’s the problem you face, Theo. There’s no reason to believe in the inviolability of truth claims made by a tradition that has changed those truth claims so often and so drastically over time.
3. You are way off what suffragettes and abortion proves. First, there’s actually a lot of dispute over the simplistic claims of right-wingers about what first wave feminists actually believed about abortion. But in any event, even if it is assumed that they were really pro-life, all that would show is that context matters in social movements. It still matters– I can quite imagine the Indian feminist community containing a substantial number of pro-lifers, given the issue of sex-selective abortions has salience over there. (Dianne Feinstein, who generally is considered to be relatively feminist, opposed sex-selective abortions in this country for many years.)
I have actually never claimed that being pro-life even in this country is imcompatible with feminism. One can still be on board with the sexual revolution, contraception, equal rights in the workforce, opposition to sexual harassment, support for the rights of lesbians, opposition to religious discrimination against women, opposition to FGM, etc., while being pro-life.
What I did and do claim is that most American pro-lifers are in fact conservatives who are opposed to the goals of feminism, and are specifically people who never bought into the idea of female sexual freedom as a legitimate and important interest.
June 29, 2010, 4:54 pmDavid M. Nieporent says:
No, Dilan. What you actually said was that “What is ‘easy’ for her may well be a non-starter for other people,” implying that somehow some people can’t turn down sex.
What you also said is that Theo doesn’t have free speech rights: “But she has no business telling other people how “easy” or beneficial it would be to follow her rules.”
Which ties into your previous comment to me, misspellings and all — as well as earlier threads where you claimed that religion and libertarianism are antithetical. You think that freedom includes not only the freedom to act without restraint, but the freedom to act without judgment from others.
Nowhere. Nor did I claim you said that. What I said was clueless was your inability to comprehend that lots of people choose for moral reasons not to have sex.
They can. They may choose not to, but that’s a different story. (Perhaps that’s why you mistakenly think abortion-on-demand is an inherent component in feminism; you can’t comprehend the notion of people choosing not to have sex.)
That’s a response to something, I suppose, but not to anything I wrote.
I know — see above — that it isn’t the absence of advice or criticism.
June 29, 2010, 5:27 pmDavid M. Nieporent says:
I invite people to read Dilan’s contributions in this thread and tell me whether they think this quoted claim here is accurate.
June 29, 2010, 5:36 pmptt says:
With a decision in favor of CLS, the Supreme Court would have signalled a willingness to accept violations of anti-discrimination ordinances by all sorts of organizations, including state-subsidized, professional charity organizations. YOU BET Catholic Charities would hop on the chance to refuse to obey anti-discrimination law at least in regard to gay people. All those dioceses which didn’t very publicly end adoption services in order to avoid serving gay couples are still operating (odd that they somehow manage to keep working). You can be sure they’d be rewriting their rules and publicizing those changes PRONTO.
Slew? Well, I’m sure there’d be dozens of instances. How many constitute a slew?
June 29, 2010, 5:41 pmjiffy says:
It hasn’t yet (to my knowledge) and probably won’t be because CLS lost. The point of the Martinned’s comment was that a win for CLS would have been used to challenge other laws.
June 29, 2010, 5:42 pmjrose says:
That’s a good example (but see below), although I’m not sure there are dozens of instances nor what challenges Martinned and jiffy would have expected.
Why hasn’t Catholic Charities already proceeded? CLS won in the Seventh Circuit, and that is still good precedent since it challenged a less-than-all-comers policy. Maybe Catholic Charities felt (with good reason) their policy isn’t sufficiently linked with expressive association?
June 29, 2010, 5:56 pmptt says:
They’ve adapted to non-discrimination requirements about hiring and providing services because they’ve chosen not to draw the line for a whole variety of reasons, from not seeing it as a problem to wanting to avoid appearing prejudiced to using it as a pretext to adopt even more liberal positions about financial support of live-in relatives, but mostly because the folks who run and work for CC aren’t as anti-gay as the Vatican.
The same situation occurred with the adoption issue. CC, from the POV of boards, administrators, counsellors and workers, supported adoption to gay couples. Heck, even the Vatican official who pronounced the ban had supported similar adoptions for years when he was archbishop of SF. But all that changed under orders from the Vatican. Because their actions were more about public relations than anything else. They — the Vatican, that is — picked the two largest, most gay-friendly dioceses in the country, SF and Boston, in the nation’s two most gay-equal states, Massachusetts and California, to lay down the law about something that had been going on quietly and largely in the background in several dioceses across the country for almost two decades. Thus ended adoption to gay couples in two cities.
With a SCOTUS clearly on their side or tilting heavily and publicly in their direction, I have no doubt the Vatican would order similar policy changes throughout the U.S. dioceses.
June 29, 2010, 6:30 pmDilan Esper says:
No, Dilan. What you actually said was that “What is ‘easy’ for her may well be a non-starter for other people,” implying that somehow some people can’t turn down sex.
Apparently you can’t read either. Something can be a “non-starter” for all sorts of reasons. The point is, it’s not a choice that other people would even consider making.
What you also said is that Theo doesn’t have free speech rights: “But she has no business telling other people how “easy” or beneficial it would be to follow her rules.”
Wow, do you take things out of context! I think it was clear that I was talking about her drawing public policy conclusions from her own celibacy.
She can TALK about her own celibacy all she wants. I don’t particularly give a crap, nor do I think anyone else should, but she has that right. The problem is she thinks that government policy should somehow infer that celibate women are some sort of norm.
I invite people to read Dilan’s contributions in this thread and tell me whether they think this quoted claim here is accurate.
I don’t think pro-lifers in America sufficiently value the rights and interests of women. That is because the pro-life movement is generally stocked with the conservative religious dissenters from the sexual revolution. I have never, however, claimed that it is IMPOSSIBLE to be a pro-life feminist. Rather, I think that your hypothetical pro-life feminist would have to show concern for women’s rights with respect to sexuality in ways that actual American pro-lifers don’t.
June 29, 2010, 6:31 pmDilan Esper says:
By the way, with respect to David’s contention that I am being inconsistent, here I am 4 years ago, ON A FEMINIST BLOG, taking the position that not only is it possible to be a pro-life feminist but that some of them actually exist!
http://www.feministe.us/blog/archives/2006/10/04/shorter-dawn-eden-chill-out-ladies-youve-got-all-the-silly-rights-you-need/#comment-66970
And here I am on Matt Yglesias’ blog arguing earlier this year that, again, it is possible to be a pro-life feminist, but you would have to be supportive of gender equality even if it conflicts with religious teachings.
http://yglesias.thinkprogress.org/2010/03/iceland-bans-strip-clubs/#comment-1800535
So, yeah, I have a pretty consistent record of contending that pro-life feminists are a possibility, but that most pro-lifers are anti-feminists.
June 29, 2010, 7:46 pmyankev says:
How you got that from anything she wrote is beyond me. She did however challenge the assumption that promiscuity among her age group is not only the norm but nearly universal.
June 29, 2010, 8:20 pmDilan Esper says:
Yankev:
She’s saying a lot more than that. She says here that it’s easy for people to remain celibate, and that therefore (presumably, as this was the topic) one shouldn’t think that anti-discrimination rules should apply to rules that gays remain celibate:
http://volokh.com/2010/06/28/universities-dont-violate-first-amendment-when-they-apply-nondiscrimination-rules-to-student-groups/comment-page-4/#comment-865212
And my whole point is, what’s not burdensome for her is burdensome for other people.
Also, “promiscuity”? I don’t think there’s anything wrong with promiscuity, but I’d never argue that this was the norm. Serial monogamy and some cheating tends to be the norm. But by any measure, you make public policy choices based on the assumption that a lot of people want to have sex, whether in relationships or casually. The Theos of the world can still do what they want to do without bothering the rest of us.
June 29, 2010, 8:29 pmJeremy Pierce says:
Keep in mind that Jesus did recognize that God’s law (which he said would not pass away in any iota) allows for divorce but also condemns it. It allows it as a concession in the sense that people will do it, but it condemns it as wrong. So it regulates it to protect its victims when it does occur. Divorce is wrong, and those who engage in it must at least observe certain protections for the women they are victimizing who would be less eligible for marriage in a society that didn’t have much room for women outside marriage.
Why can’t Paul be doing the same thing, especially given that his Lord had done such a thing with a similar enough issue? If slavery in its purest form offends the moral dignity of humans made in the image of God, then slavery could be allowed as a concession (rather than a moral allowance) in the sense of regulating it when it does occur to protect its victims even if God isn’t going to endorse its occurrence? It seems as if the argument that the NT endorses slavery has to rule out such a position a priori.
June 29, 2010, 10:10 pmyankev says:
Excellent point. I’ve never read the NT, but doesn’t it take a similar position about marriage as well — better to marry than to burn, but better still to do neither?
June 30, 2010, 9:23 amJeremy Pierce says:
Excellent point. I’ve never read the NT, but doesn’t it take a similar position about marriage as well — better to marry than to burn, but better still to do neither?
Sort of. There’s a statement in I Corinthians 7 that says something like that, but there’s debate among biblical scholars about whether that’s a general claim or something restricted to a particular context of persecution. Among those who think it’s a general claim, there are those who think Paul was disvaluing marriage with respect to celibacy, but there are plenty of people who think he had a high view of marriage and was simply pointing out that, for some with a special giftedness that will enable them to serve in a celibate way, they will have an easier time seeking the goals of the kingdom of God without the distraction of a family. To take him to be seeing it as a lesser calling to have a family strikes me as not only unwarranted from this particular text but quite at odds with other texts, including others written by Paul (although scholars unwarrantedly reject his authorship of some of those texts, in part to maintain their views on the compatibility with I Cor 7, but that’s a circular argument if it’s used to support this interpretation of I Cor 7).
June 30, 2010, 11:08 amyankev says:
Yes, I can see why you might find it attractive to fashion public policy around the idea that people should not be expected to control their physical appetites.
Of course, some might think that societies that cannot be bothered to choose freedom coupled with responsibility over boundless self indulgence don’t last long, and that things start looking pretty grim once a society is unwilling or unable to distiguish between the two, the concepts of virtue, obligation and self discipline are cause for ridicule, and the only unforgiveable sin consists of exercising moral judgment (although one is permitted and indeed encouraged to condemn others for being judgmental).
Some might even think that the US and Europe are reaching that point and that the result will be not greater freedom, but rather a period of decline followed era of greater repression.
Those who are contributing to that state of affairs (and I am hardly guiltless) will be among the first to ridicule this post.
June 30, 2010, 4:49 pmDilan Esper says:
Yes, I can see why you might find it attractive to fashion public policy around the idea that people should not be expected to control their physical appetites.
This is spin. Sex isn’t like alcohol or eating. It isn’t an appetite that has to be controlled. If you screw your partner 4 times a day, you don’t get fat, or drunk. Indeed, it’s quite healthy to have a healthy sex life.
Religious extremists like to use this term “appetites” to shame people into suppressing healthy sex drives.
Of course, some might think that societies that cannot be bothered to choose freedom coupled with responsibility over boundless self indulgence don’t last long
There is no evidence that societies where people have a lot of sex don’t last as long as societies where people don’t have a lot of sex. Again, a lot of religious extremists seem to believe this, but there isn’t any empirical evidence of it.
the concepts of virtue, obligation and self discipline are cause for ridicule, and the only unforgiveable sin consists of exercising moral judgment
This is just Grade-A dumb. Just because a lot of people now reject overrestrictive religious sexual morality doesn’t mean they reject ALL morality. This may surprose you, but there are plenty of people who think that there’s nothing wrong with having sex with who you want with and who also think that we should be kind to our neighbors, help the least among us, etc.
Some might even think that the US and Europe are reaching that point and that the result will be not greater freedom, but rather a period of decline followed era of greater repression.
You might think that, but there’s no evidence for it. Further, it’s really bad to impose restrictions on someone else’s freedom based on your unsupported supernatural beliefs or your unsupported historical claims about societies crashing and burning. Because, you see, telling someone else they can’t have sex may impose a serious burden on that person.
And that’s the whole problem with Theo. She figures because she doesn’t think such a burden harms her, it wouldn’t harm anyone else either.
June 30, 2010, 5:38 pmyankev says:
I agree that it is healthy to have a healthy sex life. So do many of the “religious extremists” who so offend you. Where you and I differ is that I do not think that screwing whoever you want whenever you want is healthy, either physically or emotionally.
I have met many people who think it’s fine to screw who you want when you want. Very few of those people have noticeable beliefs along the lines you describe. Some of them talk those beliefs but in practice are guided by their physical drives and by convenience. To many of them, “helping the least among us” means not helping them personally but enacting laws that increase dependency at the expense of those who are productive, without doing the least to actually help those who genuinely need help.
So the existence of a growing underclass has nothing to do with increases in the out of wedlock birth rate, children having children, fatherless households, and young men having children they cannot support and nurture with various young women they do not marry and cannot support? And that has nothing to do with the decline of the public schools, which in turn has nothing to do with the crime rate? Or the tax rates or the economy? Tell me another. This is not unsupported historical claims. This is visible to anyone who cares to look. But people who want an excuse to give unbridled and irresponsbile reign to their physical appetites (and again, I am NOT talking about sex in the context of a committed monogamous relationship) generally find any excuse possible to justify selfish and irresponsible behavior.
I did not tell anyone not to have sex. I do think that having extra marital sex is irresponsible and dumb. That’s not the same as saying it should be illegal.
July 1, 2010, 9:35 amDavid M. Nieporent says:
No, but yiu might get pregnant.
Or diseased. (Presumably not if you only screw your partner and your partner only screws you, but then, that _presumes_ that you’re “controlling” your appetite, to some extent. Someone who wasn’t controlling his/her sexual appetites wouldn’t be so narrow.)
July 1, 2010, 10:04 amRob Berra says:
Which dictates?
Or is that one of those “no true Scotsman” things?
July 2, 2010, 2:06 pmCatholic Tide says:
Kenya: Cardinal warns priests: Abuse will be punished…
My blog readers will be interested in your post so added a trackback to it on CatholicTide…
July 4, 2010, 8:12 am