Monday’s decision in Christian Legal Society v. Martinez has drawn rebukes from a number of law bloggers (among others, Rick Garnett, Rob Vischer, and Greg Sisk on Mirror of Justice and Dave Opderbeck, Bob Cochran, and Steve Smith on Law, Religion, and Ethics). I share their concerns and have expressed some of my own thoughts about the case in an op-ed in today’s Raleigh News & Observer. (I also helped prepare an amicus brief in support of the Christian Legal Society.)
Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed. As I note in my op-ed, Justice Alito’s warning that Monday’s decision “is a serious setback for freedom of expression in this country” doesn’t go far enough. Expression presupposes existence. And Martinez doesn’t silence the Christian Legal Society at Hastings—it destroys it.
That being said,
this is a hard case. And rather
than rehash arguments that I’ve made elsewhere, I thought I’d explore a tension
in the other direction, prompted by a case that the Court will decide in its
next term, Snyder v.
Phelps. Suppose that Martinez had come out the other
way. What if the next student
group seeking official recognition at a public law school wasn’t the Christian
Legal Society but the “Westboro Baptist Church Legal Society”? The scenario is not implausible. Fred Phelps, the founder and pastor of
Westboro Baptist Church, also founded the Phelps Chartered Law Firm in 1964. (Ironically, he began his career as a successful civil rights lawyer.) According to
the firm’s website, Phelps, his wife, and eleven of his thirteen children have
law degrees, most of them from Washburn University School of Law, a public law
school. If Washburn were to
welcome the Christian Legal Society, could it then exclude the Westboro Baptist
Church Legal Society? It seems
unlikely that there is a constitutionally significant difference between the
two groups on either free exercise or freedom of association grounds. From the perspective of the Westboro
Baptists, it is not they but other Christians who are illegitimate and
heretical. And from the
perspective of the state that wishes to enforce its antidiscrimination norms,
both groups are offensive and discriminatory. Those who would draw a moral distinction between the
Christian Legal Society and the Westboro Baptist Church Legal Society will
likely find that they need to keep the bathwater to keep the baby. I don’t like that outcome, but I prefer
it to the alternative that the Court has handed us with Martinez.
Steve Shiffrin has a different take on the case here (closer in spirit to a couple of comments on Rick Garnett's post): http://www.religiousleftlaw.com/2010/06/the-insignificance-of-the-christian-legal-society-case.html
Posted by: Patrick S. O'Donnell | July 01, 2010 at 08:10 AM
Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed.
I have some sympathy for this line of thought, but the question I have (and haven't seen a good answer for, I think) is why the "diversity" line should be drawn at the level of student organizations and not at the law school level. In this line of reasoning, we think that we want a diversity of organizations. But why isn't a law school that has the sort of rule that Hastings had (or even one that says it won't allow discrimination on the basis of sexual orientation, though that's not the rule Hastings had) also a sort of organization or association that ought to be able to set its own rules? After all, students who didn't like _that_ rule could go up the road just a bit to the University of San Francisco Law School, and given the tuition at Hastings today, it might not even be more expensive. Now, there are some state-actors issues here, of course (though these days it's perhaps dubious how much of a state actor Hastings is, as it's essentially been privatized by the UC System), but that's distinct from the "diversity" argument. And maybe there is a good, principled argument to be made that the "diversity" cut should (always?) be made at the club and not the school level, but I doubt it. (I'm especially skeptical of this idea given that many who have been making the claim that the diversity argument should apply at the club level in this case make it at the school level when it suits their purposes, leading me to be somewhat skeptical that they are really making a principled argument as opposed to giving an ad-hoc rationalization for the result they want, though I have no reason to think that's what John is doing here.)
Posted by: Matt | July 01, 2010 at 08:15 AM
The CLS case seems pretty clearcut. If a group can discriminate (i.e., the CLS) then it only seems fair that another group (i.e. Hasting) can discriminate. The CLS can still meet, talk and have full freedom of expression and association. They just don't get support for it from the school. If Hastings is forced to support a group it disagrees with then the CLS should be forced to associate with a group (e.g. gays) it disagrees with.
Posted by: John | July 01, 2010 at 11:34 AM
The Florida Bar Association Convention sponsors a moot court competition; half the problem this year involved a student group with views that were somewhere between CLS and Westboro. The actual and practice rounds all, naturally, triggered questions of Student Westboro and similar hypos.
Posted by: Howard Wasserman | July 01, 2010 at 02:05 PM