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What Happened to the First Amendment? Print E-mail
By William Saunders   
Sunday, 25 July 2010

In case you missed it, the Supreme Court turned the old adage, “Save the best for last,” on its head when, on the last day of its term, it announced a decision that is surely one of its worst ever, and one that could prove deadly for religious freedom on campuses.

In the case of Christian Legal Society v Hastings, the Court decided that the Hastings College of Law could deny registration to a student group as a CLS chapter because it required morally upright behavior of its members and adherence to its statement of faith. Pause and consider that. “Conservative” evangelical students – unlike over sixty other associations of students – may not be recognized as an official student group because CLS wants its members to agree with the theory and practice – the raison d’etre – of the group, that is, to be good and proper evangelical Christians. 

Can one imagine requiring the “animal rights” group to admit unrepentant, proselytizing fox hunters? While the majority opinion claims one can not only imagine it but that Hastings’ policy actually requires it (under an “accept all comers” policy), the dissent makes short work of that claim. This is not the place to rehearse the whole lay of the land, but suffice to note that no other group has ever been similarly treated by Hastings and that Hastings only announced the existence of this “policy” when it filed its legal brief in the case. Do you smell something fishy? Well, so does the dissent. (“Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming.”)

The votes in the case were divided along now-familiar lines between four “liberals” (the majority in this particular case) and four “conservatives” (the dissent), with Justice Anthony Kennedy the key swing vote between the two (more or less solid) blocs. And this time he swung with the liberals (as he often does in “social issue” cases). The dissent was composed of Clarence Thomas, Antonin Scalia, John Roberts, and Samuel Alito, with Alito writing the dissenting opinion. 

The dissent demonstrates that the majority upholds a policy by Hastings that really never existed, but was invented to provide a post hoc justification for the discrimination against CLS that had already taken place. This is clearly shown, for instance, by the fact that the dean with whom the students met, following an initial rejection by the same dean of their application to register, told them nothing about an “all-comers” requirement, but instead objected because their statement of faith was not compliant with Hastings non-discrimination policy that includes, most importantly, sexual orientation.

It’s clear what is going on. The conservative evangelical students were disfavored by Hastings because they disapprove of non-marital sexual activity, including homosexual acts. After all, what could be more offensive in the modern culture, based as it is upon the god of sexual freedom, than such a viewpoint? What could be more “offensive” to the majority of students at a liberal law school (or to the tenured faculty and administration) than those who do not equate any other sexual behavior with that between one man and one woman within the bond of matrimony? 

While the majority protested (too much) that this was a “neutral” policy by Hastings, the dissent saw more clearly: “Today’s decision rests on. . .the wrong-headed] principle…[that there is] no freedom of expression [that must be respected if it]…offends prevailing standards of political correctness in our country’s institutions of higher learning.”       

Didn’t we have contentious debates about “free speech” on campus during the 1960s and 1970s? Indeed we did, and there is a case from that era that is right on point, Healy v James. That case involved a highly disfavored group, Students for a Democratic Society. When a proposed student chapter refused to disavow violence (as the national SDS refused to do), they were denied registration by a college. In deciding Healy, the Court held this was an impermissible infringement on “association rights” protected by the First Amendment. 

What did the majority make of this inconvenient precedent on association rights? As the dissent notes, it ruled, in essence, that “the effects of this discrimination [which are the same in this case as they were in Healy,] were really not so bad. . . .that a little viewpoint discrimination is acceptable…” In layman’s terms, they held the constitutional infringement was not too bad. 

This is rather ridiculous on its face. However, it isn’t funny because it shows what entrenched elites, both in colleges and on courts, are up to. They are determined to vanquish their most hated foe, those who adhere to traditional religious points of view, and they will bend, perhaps break, the Constitution to do so. Which is another reason, by the way, to be careful about whom we confirm for the Supreme Court.

           

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.
 
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Comments (10)Add Comment
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written by Ray Hunkins, July 26, 2010
Good critique of an inexplicable decision - agenda driven and antithetical to the rule of law - written by a majority who wish to impose their liberal views on the rest of the country. This majority was elevated to the Supreme Court for exactly that purpose by the "ruling class" Until the "ruling class" is replaced we will get more of the same.
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It's too late
written by James Danielson, July 26, 2010
It is true, as the author here says, that we must be careful about whom we put onto the Supreme Court, but in matters of social manipulation, the fix is in. The Court's self-granted and indefensible power under its doctrine of judicial review and its manifest willingness to use whatever expedient at hand to have its way, show that in the end, the justices will do as they please when given opportunities to remake American society to their liking. This may seem a dreary and defeatist approach and, well, it is, but not unrealistic.
0
...
written by john mccray, July 26, 2010
I've begun to apologize to my grandchildren for the insanity we are leaving them.
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First Amendment Rights Intact
written by Bentang, July 26, 2010
Saunders asks, “What happened to the First Amendment?”

Answer: Nothing. CLS’s First Amendment rights were not violated by Hastings College’s policy or by the Supreme Court’s decision in Hastings’ favor. CLS may continue to discriminate against those who do not agree with its principles, and this is right and proper. Their First Amendment rights of free association, free speech, and free exercise are intact.

What CLS may not do is receive funding or recognition from Hastings College. This is because CLS’s discriminatory membership policies violate the college’s own non-discrimination policy, which withholds recognition from campus groups that seek to exclude people on the basis of religious beliefs or sexual orientation.

The Court’s decision in CLS v. Hastings makes complete sense to me, and I agree with Ruth Bader Ginsberg’s opinion that CLS was seeking preferential exemption from Hastings’ policy. To have decided against Hastings, the court would have needed to show that their non-discrimination policy was unconstitutional, and they couldn’t very well do that without running into problems with the Equal Protection Clause (the 14th Amendment).

Like it or not, state universities have a right—and I would say an obligation—to set and enforce non-discrimination policies. Everyone in the state—Christians, gays, Muslims, Jews, blacks, women, and all the rest—supports state universities with tax dollars. Their children should not have to experience exclusion based on any of these identities. The fact that CLS has now been “excluded” may seem unfair until we remember the reason—i.e., that their policies are exclusionary. This is one of those paradoxes—like being intolerant of intolerance—that we should learn to live with. Exclusion due to violation of a policy is not the same as exclusion because of race, sexual orientation, or religion.
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reply to Bentang
written by Howard, July 27, 2010
I agree with Bentang -- to a point. Official recognition by a university is not a prerequisite to free speech, as I'm sure we would be pointing out if someone tried to sue Franciscan University of Steubenville on First Amendment grounds for not recognizing a "gay pride" student group.

However, he goes on to suggest that because Hastings is a public university, it is appropriate for them to exclude CLS on the basis of their beliefs and practices but not, for example, a Muslim group for its beliefs and practices. This is a bit of a stretch; I suppose the truly interesting test will come when a Muslim group (or an Orthodox Jewish group) applying for recognition with similarly explicit moral standards in its charter.

The ONLY way to steer clear of any impression of supporting one side against the other is probably to drop the idea of "recognized student groups" altogether and to eliminate the student activity fees that go to their support. I think similar steps will have to be taken in many areas of education -- like leaving parties, proms, and graduation ceremonies to be provided (or not) by social organizations not related to the school. (Churches? The YMCA? The United Way? The American Legion? The Boy Scouts and/or Girl Scouts?)
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Director, MARRI
written by Pat Fagan, July 27, 2010
The Manhattan Declaration suggests the time may be coming for civil disobedience. On this issue we need to figure out how to be be so disobedient, without having to incur the usual court costs. Can any good lawyer figure out how to do that?
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Reply to Howard
written by Bentang, July 27, 2010
Howard, I didn’t make the point that you attributed to me in your paragraph 2. My position—and apparently the court’s—is that any student organization that refuses to comply with Hastings’ non-discrimination policy should be considered ineligible for funding and recognition. It doesn’t matter whether that organization is for Muslims, for Jews, or for born-again Christians. If they have discriminatory membership policies, they should take their organization off-campus. I would agree with you that certain functions (e.g., straights-only proms) should probably be handled by organizations that do not receive state funds. This should not be a problem. Correct me if I am wrong, but I don’t suppose the Newman Centers expect funding from the universities around which they are based. Why, indeed, should taxpayers support any organization that practices discrimination of the sort that goes on in CLS?
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Do BYU profs lose their First Amendment rights?
written by Bentang, July 27, 2010
Here’s a parallel that may throw some light on the CLS v Hastings decision:
Brigham Young University makes a distinction between two kinds of academic freedom—one for individual faculty members to “teach and research without interference,” and the other for the institution to “pursue its distinctive mission.” Obviously, these freedoms may sometimes be at odds, so the faculty are subject to what BYU calls “reasonable limitations.” They may not contradict or oppose LDS Church doctrine or policy in public, they may not deride the LDS Church or its leaders, and they must not violate the “honor code.”
Is any of this a violation of faculty’s First Amendment rights? No, of course not. BYU faculty may say what they like about the LDS Church as long as they are prepared to seek employment elsewhere. When they signed their employment contract at BYU, they agreed to certain restrictions on their speech.
This is why CLS’s case against Hastings was without merit. They wanted funding and recognition from Hastings but refused to comply with Hastings’ non-discrimination policy. Hastings said, in essence, “You’re free to associate in whatever way you choose, but not on our dime.” If the Supreme Court had decided against Hastings, every organization in this country, from corporations to churches, might have lost the power to set its own policies. Face it—that power comes from the ones holding the purse strings. In Hastings’ case, it was the taxpayers.
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Second Class Law Students
written by Graham Combs, July 29, 2010
I'm surprised that no one brought up a comment made by Justice Alito in his dissent saying in effect that Christians are now second class students. That says it all. Constitutional nitpicking allows a "thoughtful" sidestepping of the reality on the ground. In law school I was definitely treated as a second class American. Quite simply you could not, for example, challenge the abortion default position no matter how much the facts of a case required it. To obsess about "funding" misses the point. Members of the CLS will always be suspect and the very act of joining is now discouraged in the eyes of faculty and students. That's the reality. We are less free day by day. And what it means is that Americans are now getting a second-class legal education because there is no real debate or thought going on. (And my fellow Catholics wonder why I get so discouraged by ending abortion in this country.) Isn't this exactly what Jesus talked about again and again in the gospels in regard to the actions and words of the Jewish priesthood and their obsession with legalistic religion? In his memoir, MY GRANDFATHER'S SON, Justice Thomas describes in painful detail his confirmation hearings. His sponsor and guide was Sen. John Danforth who is also an Episcopal priest. Before each day of hearings, Fr. Danforth would kneel with Justice Thomas and pray. Then he would tell Thomas to let "the Holy Ghost speak through you." Can you imagine how outraged the president and his followers would be if he found out that was going on with soon-to-be Justice Kagan? There are only a handful of law professors in this country who would not be outraged by Justice Thomas's story.
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Response to Graham Combs
written by Bentang, July 30, 2010
Many Americans who knew of Justice Thomas’s religious beliefs were concerned that the “Holy Ghost” whom Senator Danforth invoked during these prayer sessions might have more sway over Thomas than constitutional principles (if the two ever came into conflict). We needed—and probably did not get—a judge who would impartially interpret the Constitution regardless of his personal religious beliefs. The spectacle of Thomas praying in this way with Senator Danforth sounded some alarm bells, and with good reason. Separation of church and state is a bedrock principle of our system of government, and we should all be grateful to those who stand guard over it.

We are not “less free” because of the CLS v Hastings decision. On the contrary. The Court’s decision did nothing to abridge CLS’s freedom, but it did affirm the freedom of publicly-funded institutions to set their own policies. CLS is every bit as free as before, but henceforth it may not receive funding from Hastings College.

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