What Happened to the First Amendment? Print
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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