That’s the title of an online op-ed I have today at the New York Daily News. The opening paragraphs:
We have many constitutional rights. But we generally aren’t constitutionally entitled to get subsidies for those rights. The right to privately educate our children doesn’t equal a right to government funding for private schools. The right to abortion doesn’t obligate the government to allow abortions in county hospitals. The right to urge voters to elect a candidate doesn’t entitle tax-exempt nonprofits to use tax-deductible (and thus subsidized) contributions to engage in such speech.This is why the Supreme Court’s decision Monday in Christian Legal Society v. Martinez is right. The majority opinion was written by Justice Ruth Bader Ginsburg and joined by her fellow liberals, and by moderate conservative Justice Anthony Kennedy. Being a moderate conservative myself, I rarely agree with the liberal Justices, especially when they reject First Amendment claims. But here they and Justice Kennedy are correct.
Note that I generally don’t focus on the procedural complexities of this particular case (which is why I didn’t focus on the possibility of further litigation in the lower court about whether the take-all-comers policy was pretextual); I assume that readers are more interested in the broader question of which such policies are constitutionally valid. You can also read the opinions, and my 2006 Stanford Law Review Article on the subject.
AJK says:
I think that’s a very strong piece (perhaps because it reflects my own thoughts on the subject). How did it come to end up in a place like the Daily News?
June 29, 2010, 3:10 pmTom Ault says:
Something that occurred to me the other day is: suppose that some group of students takes advantage of the university’s “take all applicants” policy to take over and eliminate another student group whose membership belongs to a class protected by civil rights laws. For example, suppose a group of (non-Muslim) students bands together to eliminate the Muslim student union by taking over its leadership and then voting to disband it. Assuming for the moment that the Muslim students have one or more claims against the non-Muslim students for civil rights violations, could the Muslim students also bring a claim against the university as a contributing party because the elimination of one or more unpopular student groups through this very tactic was a very-likely and easily forseen outcome of the “take all applications” policy the university chose to establish?
June 29, 2010, 3:12 pmSoronel Haetir says:
Tom,
I would think such an action would be viewed through the lens of political retribution, which provides the aggrieved party much less protection than other forms of retaliation. Much like the case a few days ago where the vice principal lost his internal job after a political shakeup.
Muslim students would be free to form a new association (possibly with the same name as the old if it had truly been disbanded) and the other students would be free to take over again and so on until one side lost interest in the process.
June 29, 2010, 3:19 pmwm13 says:
More likely than Mr. Ault’s hypothetical would be non-Muslim students taking over the organization and continuing it, putting out statements endorsing, say, the French ban on headscarves or some such, thus enabling their political allies to say, “But the Muslim Student Association endorses . . ., so . . . isn’t anti-Muslim.” Or Jews for Jesus taking over the Jewish Students Association. Or gay activists taking over the Episcopal Church.
June 29, 2010, 3:20 pmSteve P. says:
I’m one of the ones who is more interested in the broader question of what’s constitutionally permissible. Good article, I agree completely. Does that make me a moderate conservative?
June 29, 2010, 3:35 pmCJColucci says:
could the Muslim students also bring a claim against the university as a contributing party because the elimination of one or more unpopular student groups through this very tactic was a very-likely and easily forseen outcome of the “take all applications” policy the university chose to establish?
Why is it a “very-likely and easily foreseen outcome”? Is there a significant history of this sort of thing? If there were, I’m sure someone would have brought it to the Court’s attention and Justice Alito would have highlighted it.
June 29, 2010, 3:38 pmTangoMan says:
The right to privately educate our children doesn’t equal a right to government funding for private schools.
This formulation is, I think, a bit of a stretch in regards to the facts of this case. The University levied a mandatory student activity fee on its students and then redistributed those funds to student groups. I’m not comfortable with describing this process as public funding.
To my mind this process is fairly similar to the activity of Special Master Kenneth Feinberg who has control over the distribution of $20 billion that will be received from BP. Does his government affiliation mean that the redistribution of BP money will now make all such distributions “government funding.”
If my facts with regards to the source of the club funding are not completely accurate and there was a congressional appropriation or a state appropriation directed to funding student clubs at Hastings, then I concede that describing such spending as public funding would be appropriate.
June 29, 2010, 3:42 pmKevinM says:
I think the Daily News meant freedom of association; “free association” means something else. Or I should say it makes me think of something else.
June 29, 2010, 3:49 pmwm13 says:
Absence of evidence is not evidence of absence, especially since the world little notes nor long remembers most student group activities. In fact, when I was at Exeter, a group of students did take over and abolish the Young Americans for Freedom chapter. (They did this more as a joke than out of strong left-wing political beliefs.) I suspect the administration might have done something had it been a group they cared about, but it wasn’t. I also suspect that this blog comment may be the sole record ever created, and accesible to the future historian, of the fate of the Exeter chapter of the YAF.
June 29, 2010, 4:02 pmbombloader says:
One question on this case. How broadly is university funding/support question being interpreted? Does this merely mean that groups that don’t want to abide by the entire nondiscrimination policy can simply say “No thanks”to funding and get there funds from elsewhere. Or could “support” be interpreted so broadly that it includes things such as using university facilities or even advertising for group functions on campus. The latter would seem to be a truly serious 1st Amendment violation.
June 29, 2010, 4:23 pmloki13 says:
Finally, we have evidence of the nefarious plot to take over campus groups by those diametrically opposed to those groups missions!
Oh, wait. It wasn’t a college group… it was a high school (boarding school) group. And it wasn’t done for any political motivation, but as a prank. And the group members of the YAF were so (a)pathetic that the only record isn’t outraged editorials, or forming a new group, but “this blog comment.” Well, then.
I’ve said this many times in the past, and I’ll say it one more time now:
On policy grounds-
1. People like to hang out with people who share the same beliefs. At the boarding school (ps- three feet on the floor, ninety degrees open door, parietals, parietals, we got more!… heh, inside joke), college, and graduate school level it is hard enough to get students to join organizations that they actually *want* to join. The reason that there is no evidence of group takeover from groups diametrically opposed to the mission of a group (as opposed to the stray gay christian trying to join a christian group) is because…. students have better things to do. The ultimate clash of the boogeyman under your bed (theory) vs. shining your light under your bed (reality). Despite (for example) having an “all-comers” policy, there weren’t a lot of white students in the BLSA at my school, or a lot of men in the Women’s Law Student’s Group, or a lot of young students in the OWLs group (non-trad students) etc. There weren’t a lot of conservatives in the ACS or a lot of libs in the FedSoc (but there were some)… and no desire for a takeover.
2. You accept money from Caesar, you play by Caesar’s rules. You don’t like it? You have the freedom to associate and form your own student group *without taking the money.*
And as a constitutional matter-
June 29, 2010, 4:25 pmWhy would be constitutionalize this? Really? Remember, conservatives, floor, not ceiling. Those are valuable words, and you should remember them for when your ox isn’t being gored.
Supreme Court: Christian Legal Society v. Martinez | La Flog says:
[...] “On Free Association, the Court Makes the Right Call” [...]
June 29, 2010, 4:36 pmwm13 says:
Is it really going to be a two-way street, such that when a Texas school board says, “Sure, you can have a Gay Straight Alliance, as long as membership is open to all,” knowing that a group of evangelical students will attend each meeting and urge the gay students to repent of their sins, the same five justices will say, “Fiat justitia”? I think conservatives are suspicious, noticing as they do that menorahs and crescents always seem to be permitted in public schools, but not crosses or creches.
June 29, 2010, 4:45 pmzuch says:
Much like, absent tradmark law, I could start selling Yugos as Fords. Any abandoned trademarks can be used for such as well — as things stand now. Similarly for domain names, it seems.
Cheers,
June 29, 2010, 5:09 pmLior says:
Prof. Volokh: in the op-ed you discuss the disagreement between the majority and dissent regarding the actual policy (take all comers vs. non-discrimination on specific grounds), without noting a crucial point for the majority. It seems that in the lower court CLS stipulated that the policy is that organizations must “take all comers”, while at SCOTUS they tried focus on the written policy. The majority castigated them for this under the “law of the case” doctrine. I’m not sure that the case would have come out the same without this stipulation.
June 29, 2010, 5:29 pmJ.K. says:
What I found most interesting about this decision was based on the ex post facto “accept all comers” policy, rather than the actual written policy of the College:
In this modern jurisprudence, can a statute be defended on the grounds “we wouldn’t use it for unconstitutional purposes”? Or, more specifically, when a statute is used for an unconstitutional purpose, can the government argue “we’re basing this on a broader, not-unconstitutional basis, not the language used in the statute, which we agree is unconstitutional.”
June 29, 2010, 5:39 pmCJColucci says:
noticing as they do that menorahs and crescents always seem to be permitted in public schools, but not crosses or creches.
What’s the weather like on your planet?
June 29, 2010, 5:44 pmJ.K. says:
From the dissent (pp. 11-12):
June 29, 2010, 6:00 pmwm13 says:
The temperature is about 437 F3d 1. How about you?
June 29, 2010, 6:13 pmawp says:
“But we generally aren’t constitutionally entitled to get subsidies for those rights.”
The question really is, once the government IS subsidizing something should they really be allowed to pick and choose who to subsidize based on their beliefs? I think in this context disallowing freedom of association is roughly equivalent to discriminating based on beliefs.
This really just goes to show why Public Universities shouldn’t be using student fees to fund anything other than strictly academic pursuits.
June 29, 2010, 6:28 pmThrobert McGee says:
Maybe not YET, but I’m really fuckin’ hoping that come September, Evangelical Christian college students will be lined up along with Orthodox Jewish and Muslim students to join the “LGBTQetc. Student Union” at schools across the nation, and insisting on their right to be voting members and potential officers.
And it would be super-sweet to see a newly and duly elected president of the Podunk University Queer Consortium submit an op-ed to one of the campus newspapers under the headline Why Gay “Marriage” Is Not a Right.
Come to think of it, you don’t even need to be religious, or anti-gay at all — everybody who believes strongly enough in freedom of association should merely pretend to endorse anti-gay viewpoints, while simultaneously insisting on their right to be a fully enfranchised member of the Podunk University Queer Consortium.
Maybe THEN people will understand why this was such a ridiculous decision.
P.S. I’m a 38-year-old man who doesn’t believe in God, but who DOES believe with fundamentalist conviction that another man’s erection tastes even better than a mouthful of Jelly-Bellies™! And if I were a college student, and had gone to the considerable trouble of organizing a student group for other homos, based on the founding principle that homosexual lovemaking can be dignified and life-affirming and joyous, I sure as hell wouldn’t want my organization invaded by a bunch of Bible-addled nincompoops pushing the self-evidently ridiculous theory that M2M or F2F bonking is intrinsically degrading, emotionally sterile, second-rate, and upsetting to Jebus.
P.S. Go Christians! Go Christians! It’s your birthday! It’s your birthday!
June 29, 2010, 6:56 pmzuch says:
This of course is a policy statement, and various specific procedures can be put in place (and undoubtedly were) to try to achieve this policy aim. For instance, they don’t say in that statement that RSOs shall not “discriminate unlawfully”. And even if they did, that would hardly answer the question as to what would be unlawful, would it?
If they decided that assaulting your dormitory roommate made for a “hostile university environment”, I don’t doubt that they could impose severe disciplinary sanctions for anyone that killed their dormitory roommate (even though such a rule might be over-inclusive and under-inclusive as to the ends sought). And if some student was of the strongly held religious belief that murdering their roommate was the appropriate response to perceived blasphemy by the roommate (such as playing heavy metal late at night), I don’t doubt that any such incidental constraints on that student’s liberty to practise their religion would not be unconstitutional, even were the administration aware in advance of such said beliefs amongst certain students.
Cheers,
June 29, 2010, 7:27 pmjrose says:
No, and Eugene agrees. But he argues in the editorial that Hastings did not choose who to subsidize based on their beliefs.
June 29, 2010, 8:04 pmSecond Amendment Highlights Big Day at Supreme Court « Verus Politics: Truth and Reason says:
[...] In Christian Legal Society v. Martinez, the Court ruled that state colleges can limit status for campus groups to those that admit all comers. Hugh Hewitt argues against the ruling, while Eugene Volokh argues that the Court got this one right. [...]
June 29, 2010, 8:12 pmThrobert McGee says:
Which leads me to wonder whether Prof. Volokh actually read Alito’s dissent.
June 29, 2010, 8:45 pmwm13 says:
Yes, but he also argues that Hastings should be allowed to choose whom to subsidize based on the reason for their beliefs: if they believe that the Constitution, or modern social science, supports their argument, that’s okay, but if they believe that the ontological substrate of the universe supports their argument, then the dangerous nature of their beliefs justifies allowing them fewer rights.
June 29, 2010, 8:53 pmTim says:
I’m saddened to see Professor Volokh defend the hecker’s veto in this instance. It’s not often I find myself in such disagreement with him.
Fortunately, Richard Epstein is still on my side, as is my former employer, the Foundation for Individual Rights in Education.
June 29, 2010, 9:00 pmjrose says:
Throbert,
I don’t believe Alito addressed Eugene’s argument on the law. Alito did argue that Hastings policy was a pre-text for denying recognition based on belief. But, that’s a finding of fact, not of the law.
Assume Hastings, or another future university if you prefer, does not engage in a pre-text. What is Alito’s counter to Eugene’s claim that the policy is not based on CLS’s belief, but rather on the desire to not exclude prospective members?
No, that is not Eugene’s argument. He argues (as noted above) Hastings can choose whom to subsidize based on the desire to not exclude prospective members. That rationale is not directed at CLS’s beliefs nor the reason they hold their beliefs.
June 29, 2010, 9:16 pmUnconvinced says:
The problem is that this is not the standard used whenever liberal causes are involved. When it’s race/sex/etc., we use a hair-trigger threshhold to ensure pervasive equality; but when it’s just religion, we nit-pick about the finer points of subsidy and state action…
June 29, 2010, 9:24 pmwm13 says:
jrose: Did you read Prof. Volokh’s article all the way to the end? He says quite clearly that, in his view, it would be proper for Hastings to impose “a ban on religious discrimination, but not other kinds of ideological discrimination” because religious discrimination is “unfair and . . . socially corrosive.” In other words, groups that require members to share their beliefs about the Constitution or the slope of the IS-LM curves are fine, but groups that require members to share their beliefs about ultimate ontological matters are dangerous and must be strictly controlled.
June 29, 2010, 9:45 pmjrose says:
OK so far (except Eugene thinks as a matter of policy it is improper, he instead thinks it is OK for Hastings to believe it is proper).
That doesn’t follow from Eugene’s statement you quote above. The fact that a religious group happens to be impacted more than a secular group had no bearing on what motivated Hastings.
June 29, 2010, 9:53 pmPES says:
That case fails to support your point. If anything, the court goes out of its way – and way beyond what was necessary to actually decide the case – to suggest that the school system’s belief (that it could not constitutionally include a creche in its holiday curriculum) was a mistaken one. To me, this doesn’t seem to raise a spectre of selective liberal enforcement.
June 29, 2010, 9:54 pmArthur Kirkland says:
I’m surprised no one has mentioned what might be the foremost governor with respect to students who might fantasize about overrunning a student group for ideological reasons: Some of them might wish to be hired someday.
That type of disingenuous, low-rent conduct would likely be a strong disqualifier with respect to most prospective employers.
June 29, 2010, 10:04 pmPES says:
Except when its abortion, or Irish parades, or race in secondary schools, or any other decision on liberal causes that comes out against such causes. Then the nit-picking subsidy/state action standards are just right, I expect.
June 29, 2010, 10:12 pmThrobert McGee says:
Well, there’s this:
And I would offer this, too, as a “counter” from Alito to Volokh:
And finally, although it’s not strictly a debunking of Volokh’s claim, this sentence bears repeating:
NB: If you insist on enforcing viewpoint diversity within groups, then the viewpoint diversity among groups must decline, because individual groups become unable to maintain a distinct identity.
I would also point out that if a group of Hastings law students who believed that one can simultaneously be “actively gay” and “actively Christian” wanted to start their own club based on this principle, the evil homophobes of the Christian Legal Society would be utterly powerless to stop them — in fact, the newly created Fellowship of Gay-Lovin’ Progressive Hippie Jesus Fans (or whatever the group chose to call itself) would be entitled to the same funds-and-facilities access that the Christian Legal Society bloody well ought to have. And that would be a net increase in diversity, right?
June 29, 2010, 10:38 pmjrose says:
Throbert,
As before, Alito’s claims about whether Hastings had an all-comers policy (an argument on the facts, not the law) has no relevance to Eugene’s point about the law.
I ask again, what is Alito’s rebuttal to Eugene’s argument on the law that a policy not motivated by CLS’s beliefs, but rather motivated by making sure prospective members of possibly only certain classifications are not excluded, is permissible.
June 29, 2010, 10:52 pmTangoMan says:
I ask again, what is Alito’s rebuttal to Eugene’s argument on the law that a policy not motivated by CLS’s beliefs, but rather motivated by making sure prospective members of possibly only certain classifications are not excluded, is permissible.
I have no legal training but I would be looking to disparate impact and hate speech law which clearly reason that intent and motivation are either immaterial or of secondary importance to the effect on the victims.
There is a clear effect on the ability of the CLS students to shape and run their organization according to their beliefs even if that is not the intent of the all-comers policy.
June 29, 2010, 11:17 pmjrose says:
The question before the Court was what the Constitution demands, and the Constitution does not demand a remedy for a disparate impact. Eugene thinks you have a great argument for what Hastings’ policy should be, but not for the Constitutional question which he believes hinges on motivation.
June 29, 2010, 11:28 pmGov98 says:
Ultimately, this case just establishes why Public Higher Education is a waste of taxpayer money. If it wasn’t a UC this wouldn’t be an issue. So…no more UCs. It’s not like the State has the money to burn anyways. Everybody wins!
That being said, being an independent fundamentalist Christian, let me just say, I think the result is wrong, but not really a big deal. An independent fundamentalist organization really shouldn’t be living off of government largesse. Instead, they should start a local church or join an existing and go out through the community.
(Not that there’s anything wrong with Christian clubs, just realistically a Christian “club” has in my experience not really been about much. A church on the other hand is the means and place Christ has chosen for his people to fellowship.)
June 29, 2010, 11:45 pmTangoMan says:
The question before the Court was what the Constitution demands, and the Constitution does not demand a remedy for a disparate impact.
Can the Civil Rights Act, and subsequent case law, which give rise to the disparate impact doctrine, stand if they are in contravention of the Constitution? Ultimately disparate impact has some Constitutional authority backing it, so I’m curious why disparate impact can be constitutionally sanctioned in some discrimination cases and not be constitutionally sanctioned in others.
On the other front, what is the Constitutional status on the balance between intent of speech deemed hateful and the impact of speech deemed hateful? Speech issues and motivation seem to me to be clear constitutional issues and hate speech provisions often like to emphasis impact on parties irrespective of the intent of the speech.
June 29, 2010, 11:46 pmPES says:
@TangoMan,
The idea is that the Civil Rights Act does not purport to say that protection against disparate impact is required by the Constitution. Instead, it extends that protection against disparate impact as a prophylactic measure to ensure that “bad actors” cannot do an end run around constitutionally enshrined prohibitions against discriminatory intent. The argument is that disparate impact legislation is a permissible exercise of Congressional authority to enforce the ban on discriminatory intent “by appropriate legislation” under the section 5 of the 14th Amendment. In other words, freedom from discriminatory intent is a constitutional floor; a remedy against disparate impact is consistent with that minimum level of protection and authorized by section 5 (because Congress has made the determination that such a remedy is an appropriate/necessary means to guarantee the floor). So, “disparate impact doctrine” is arguably allowed by the Constitution, but not required.
On the other hand, no federal statute prohibits the kind of disparate impact which arguably occurred in the CLS case. And, as discussed above in the CRA context, protection against disparate impact is not constitutionally mandated. So as long as the policy was applied in a fair, evenhanded way with respect to all groups, religious or not (which I am not claiming, so no rebuttal is called for), and the policy was not motivated by an intent to discriminate against religious groups in general or CLS in particular, then this kind of disparate impact is not a legally recognized claim under the 1st/14th Amendments.
I don’t really have anything to say regarding hate speech statutes as I can’t even pretend to know anything about them.
June 30, 2010, 12:18 amJune 30 roundup says:
[...] Volokh thinks the Court made the right call in the student-group-recognition Christian Legal Society case, while Richard Epstein thinks it [...]
June 30, 2010, 1:11 amTangoMan says:
PES, thanks for the detailed explanation.
On the other hand, no federal statute prohibits the kind of disparate impact which arguably occurred in the CLS case.
I realize that disparate impact has been generally used in racial and gender related situations but isn’t religious status on par with race, ethnicity and gender as a special category which warrants protection from discrimination and if this is so then I don’t see why separate federal statutes would be required to protection religious activities from disparate impact outcomes.
June 30, 2010, 1:28 amKevin[0] says:
Given that religions inherently discriminate against other religions, isn’t it ironic that their status as a protected classification makes it impossible to form a religious group on campus?
You can either have religion or non-discrimination of religion, not both.
June 30, 2010, 1:48 amChristian Legal Society v. Martinez says:
[...] of freedom of association. [Roger Pilon, Cato at Liberty] More: Eugene Volokh thinks the Court made the right call in the case, while Richard Epstein thinks it [...]
June 30, 2010, 5:25 amjrose says:
Separate statutes aren’t required. However, no federal statute currently protects any student organization (religious or otherwise) from the disparate impact an anti-discrimination policy has on its beliefs.
One quick aside to PES’s excellent post: although it makes sense that federal statutes which provide remedies for disparate impacts are authorized by Section 5 of the 14th Amendment, the Court disagrees (see City of Boerne). Instead, they are authorized by the Commerce Clause. I’m doubtful that a federal statute which protected CLS’s beliefs would pass constitutional muster as being authorized by the Commerce Clause (Boerne is particularly on point regarding protecting religious freedom).
June 30, 2010, 7:41 amLymis says:
Well, that’s absurd.
You would have a point if the groups in question were religious denominations. But they are student clubs. It is perfectly valid for a religious congregation to make conversion a requirement for membership.
But what about being a member of a Christian Legal Society club requires baptism?
And, once again, the decision didn’t say they couldn’t discriminate all they want. Just that the school can validly choose to set the requirements for what groups they fund.
June 30, 2010, 8:36 amjrose says:
Epstein’s argument is interesting. As I understand it, he believes the Court should include disparate impacts within the scope of First Amendment protections (decrying Scalia’s viewpoint in Employment Division). I disagree, instead believing it is essential that neutral rules apply to all, allowing the democratic branches leeway in dealing with disparate impacts.
On the other hand, I appreciate Tim’s concern about the “heckler’s veto”. But, until such time it can be shown that this concern is more than an anomaly, I believe it can be rectified in the courts on an as-applied basis (if a student group demonstrates they have been infiltrated, and as a result they cannot function within their core beliefs, courts can provide relief from the anti-discrimination policy).
A couple of other points from Epstein’s argument: 1) he claims the liberal Court members are quick to defend disparate impact concerns in employment cases, but he fails to mention these are statutory claims, and 2) he claims the limited public forum doctrine requires the state to treat disfavored groups on the same terms as favored ones even when there is only a disparate impact, but doesn’t cite any precedent to support the claim.
June 30, 2010, 9:03 amKevin[0] says:
The “Christian” part kind of implies that something about being “Christian” could be a requirement.
So, a club can discriminate “all they want” but only if it is within the school’s parameters (for funding and using school resources and facilities). And by prohibiting religious discrimination, they prohibit religious clubs on campus.
June 30, 2010, 11:20 amKevin[0] says:
So you’re saying that their written core beliefs can be (e.g.) religious, but they cannot explicitly exclude leaders who violate of those beliefs. However, if that group is then infiltrated to elect such leaders, the courts may provide relief?
June 30, 2010, 11:39 amjrose says:
If as a result of such a leadership change, the speech-related mission of the group was changed (the heckler’s veto), then I beleive courts should be able to intervene.
June 30, 2010, 12:58 pmThe Curmudgeonly Ex-Clerk says:
Gov98 wrote:
From whence do you imagine this “government largesse” comes?
In the university setting, student organizations typically receive funding through mandatory student-activity fees. Such was the case in Martinez. As the majority notes early in its opinion, the law school subsidizes registered student organizations’ events “using funds from a mandatory student-activity fee imposed on all students.”
It hardly is unreasonable for students, even Christian ones who subscribe to a disfavored view of homosexuality, to expect equal access to funds extracted from the students themselves by the law school for the express purpose of funding student organizations.
So, Gov98, in your view the students who would form a chapter of the Christian Legal Society have no cause to complain when the law school imposes a mandatory fee on students, then uses the proceeds in part to fund organizations antithetical to these students’ beliefs (e.g., Outlaw) but denies them any access to the same pot of student fees on the basis of a membership requirement that the students feel themselves religiously obliged to observe?
If so, I think your view is odd. I cannot fathom why you think that these Christian students’ request for access to a student-financed fund, to which they contribute, is incompatible with Christianity, independent, fundamentalist, or otherwise.
June 30, 2010, 1:39 pmAlessandra says:
wrong thread – trying to delete comment…
June 30, 2010, 4:58 pmTangoMan says:
From whence do you imagine this “government largesse” comes?
In the university setting, student organizations typically receive funding through mandatory student-activity fees. Such was the case in Martinez. As the majority notes early in its opinion, the law school subsidizes registered student organizations’ events “using funds from a mandatory student-activity fee imposed on all students.”
This speaks to the issue I tried to raise near the top of the comment thread. Every commenter seems to be implying government funding of these student groups and to me this is seeming like the rule for “government funding” is following a variant of the “one-drop” rule of thumb for race determination. As soon as a public agency has any involvement with funding then the funding becomes public. Here the public university was taxing its own students and then distributing the proceeds of those funds to the student groups. How exactly is that public funding?
June 30, 2010, 7:47 pmAlessandra says:
I find the fundamental claim (or one of them) totally ridiculous (Justice Kennedy):
“A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”
That’s what classrooms are for. A student club, on the other hand, has no reason to exist if it is not created with a shared objective or set of values among its members.
The whole idea of a club has no fundamental meaning if it is forced to accept members who hate its core values.
Incidentally, the very opposite rationale is applied when requiring immigrants to take the United States Oath of Citizenship. Why not say, “hey, we will have much more vibrant debate in this country if we have the people who hate our values and laws come into our (nation) club. And vote! Then the debate will get really hot!”
Indeed. I’d love to see that.
UC’s actions and this decision are just another attack on religion, social conservative values, and the paradigm of a healthy sexuality within a committed relationship.
June 30, 2010, 9:28 pmRandy says:
Tangoman: “There is a clear effect on the ability of the CLS students to shape and run their organization according to their beliefs even if that is not the intent of the all-comers policy.”
Not at all. CLS is still free to operate as it wishes, but it cannot accept student mandatory fees. They can raise money through cookie sales and the like.
If you want money, you have to accept the rules. Don’t like the rules? Then don’t accept the money. It’s really as simple as that.
As for any ‘take-overs’, any student group can simply put up barriers in it’s by-laws by insisting that any officer must attend a certain percentage of meetings, that any vote to disband must be taken twice over a period of two years, that sort of thing.
I note that the President of the Duke College Republicans, a Republican student club elected a man as President, who subsequently came out as gay, and was then forced out. The club quickly found various ways to impeach him under the guise of ‘conduct unbecoming of a person in a leadership position.” You can view more here.
Finally, if a student is forced to pay mandatory student fees, then, as Justice Ginsberg notes, he or she should be able to join that organization. It doesn’t give you a right to be an officer or leader, but the meetings should be open to all. It’s an issue of fairness and transparency.
June 30, 2010, 11:14 pmTangoMan says:
Finally, if a student is forced to pay mandatory student fees, then, as Justice Ginsberg notes, he or she should be able to join that organization. It doesn’t give you a right to be an officer or leader, but the meetings should be open to all. It’s an issue of fairness and transparency.
Your information here is incorrect. In the very first letter that CLS wrote to the Administration back in 2004, they noted that their meetings were open to all but that leadership positions were restricted to those students who signed a statement of faith. It was never about this club being a completely closed circle, it was about the leadership being a closed circle. That’s now done with. A gay Muslim student could be elected president of the CLS.
July 1, 2010, 1:06 amGov98 says:
Curmudgenly ex-clerk-
I understand your point and agree in the sense that I do think the court got it wrong. But I’m not going to go crazy over it, there’s far more important things then this.
The students could be just as well served by having a mid-week Bible Study on the tower, and then talking to students at Beer on the Beach.
Look, I know my view is odd, but look I think we can both agree that Hastings is a school that is of the world. We should also agree that the money that students pay into the activity fee is paid for by worldly students (yes some Christians too, but it’s like a tax rendering to Caesar that which is Caesars), by taking the money and the accomodations, to some degree HCS is “partnering” with the school, and violating 2 Corinthians 6:14, they are being joined together with a worldly school. Christians should not be so bound.
I don’t have a problem if people interpret 2 Corinthians 6:14 differently, but still that’s why I’m just not going to get to worked up. It’s not the biggest loss. It’d be far more interesting to actually use Beer on the Beach as an opportunity to witness. (I’ve always thought it absurd that activity fees went to fund alcohol consumption, but whatever.)
July 1, 2010, 1:35 amPubliusFL says:
The weak part of the article is here:
I’m pretty sure I haven’t heard about religious clubs grabbing students and giving them compulsory baptisms or circumcisions. So what do we mean when we talk about “conduct” and “treating people worse”? Pure speech (what is being said about various religions and their tenets and/or members) and expressive association (which is also a form of speech). So where exactly does the “about conduct, not about speech” distinction come from?
July 1, 2010, 6:03 amThrobert McGee says:
Randy, would you argue that in order to be eligible for funds, the Hastings Queer Alliance (or whatever they call it) should be required to let self-described “ex-gays” vote in HQA elections, and stand for office?
Call me crazy, but to my mind, allowing ex-gays to determine the agenda and mission of a club for openly gay students rather severely undermines the point of having such a club in the first place.
And if ex-gays don’t like not having a vote in the HQA elections, they can start their own campus organization and get student-activity funds (or at least, they oughta be able to).
Just as gay and gay-accepting Christian law students at Hastings who dislike CLS’s rules for voting membership can start their own campus organization, rather than trying to elbow their way into a group whose stated mission is antithetical to theirs.
Because unlike in the movie Highlander, there’s no policy at Hastings stating that when it comes to student organizations for Fans Of Jesus, THERE CAN BE ONLY ONE.
July 1, 2010, 6:17 amjrose says:
I’m guessing CLS doesn’t permit Jews to be in their leadership because (generally speaking) Jews don’t believe in Jesus as Christ. You might argue CLS’s restriction is based on belief, not status. But, the overlap between belief and status is far too considerable in this instance to ignore. That is, it is reasonable for Hastings to interpret that CLS’s religious belief policy violates its religion-based non-discrimination policy.
So the conduct is CLS effectively refusing to have a Jew in its leadership.
July 1, 2010, 8:16 amPubliusFL says:
Considering, say, Boy Scouts of America v. Dale, how is that “not about speech”?
July 1, 2010, 10:18 amjrose says:
It is about speech, to the extent that CLS’s speech is burdened. But it is not about speech, to the extent that what motivates Hastings’ policy is conduct.
In Dale, burdening speech was sufficient to invalidate the application of New Jersey’s anti-discrimination statute. However in CLS, because Hastings has established a limited public forum, burdening speech is not sufficient to invalidate the application of Hastings’ anti-discrimination policy. Instead, viewpoint discrimination needs to also be established, and Eugene argues (successfully in my view) that Hastings’ motivation (directed only at conduct) leads us to conclude there isn’t viewpoint discrimination.
July 1, 2010, 11:11 amRandy says:
TangoMan: ” A gay Muslim student could be elected president of the CLS.”
Thanks for the correction.
Thobert: “Randy, would you argue that in order to be eligible for funds, the Hastings Queer Alliance (or whatever they call it) should be required to let self-described “ex-gays” vote in HQA elections, and stand for office?”
Of course. And most likely, he will be voted down in favor of someone else who is more attune to the mission of the organization. If they can’t find someone else to run against the ex-gay, then it’s a pretty lame organization to begin with.
“Call me crazy, but to my mind, allowing ex-gays to determine the agenda and mission of a club for openly gay students rather severely undermines the point of having such a club in the first place.”
That’s quite a leap. Even if an ex-gay becomes president, he and he alone doesn’t set the agenda. Instead, he’s in for one year of argument and conflict, and most likely very little gets done.
“And if ex-gays don’t like not having a vote in the HQA elections, they can start their own campus organization and get student-activity funds (or at least, they oughta be able to).”
Exactly. And if the ex-gay runs for president and loses, that’s what he can do also.
Having been involved in just about every student organization there was on campus in my day, we had the same policy as Hastings. Where there was a worry that contrary people could take over, each student club had strict rules as to who could run for office, and that eliminated any problems. In fact, the rules were so good, and the organizations so tight, that people complained about not being able to run for office easily in these organizations.
And if by chance someone does get in, you just do what the Duke College Republicans did and just run him out of office.
I think it is totally overblown the chances of anyone ‘taking over’ an organization. As someone else said, it’s hard enough to get students to join anything, and to get even a few to take over its will nigh impossible.
July 1, 2010, 4:37 pmRandy says:
Also, as I stated before, I am far more worried about another issue, Throbert. I believe the real reason the CLS brought this case was to establish a limited precedence that you can exclude gays from your organization, thereby thwarting gay rights statutes. YOu can be sure that if they succeeded, we would see a slew of cases challenging gay rights from the religious right. However this ultimately plays out, one thing is sure — gays must be treated exactly the same as anyone else. If our groups are threatened with takeovers, so are the religious groups. And thats a good thing.
July 1, 2010, 8:06 pmRandom Links on Various Topics « Random Musings of a Deranged Mind says:
[...] Volokh explains why CLS v. Martinez was rightly [...]
July 9, 2010, 1:11 pm