The Other Supreme Court Case

Ken AshfordConstitution, Godstuff, Supreme Court1 Comment

There will be much talk today and in the weeks to come about the Second Amendment case (below).

But the Supreme Court handed down an interesting First Amendment case as well today, Christian Legal Society v. Martinez.

The case involves discrimination — i.e., one's right to free speech and to freely associate.

The facts are simple:  Hastings College of Law is a college within the University of California, a public university (i.e., it is run by the state government of California).  UofC has a non-discrimination policy — if you want to have a student group, and to have that group use the UofC facilities and get funding — then you must have that student group open to everybody.

The Christian Legal Society tried to start a chapter on the Hastings College campus.  But the charter of CLS stated that it would not accept people from other religions.  It would also reject gay people.  So the UofC said, "Sorry, but you can't be a student group here."

CLS sued for religious discrimination.

And they lost 5-4.  Basically, the majority said that while CLS can discriminate against who can join and who can't, it can't force the government (i.e., the school) to recognize that discrimination.  Hasting's policy requires ALL groups to be open to ALL students, so it doesn't discriminate against religious groups.

Kennedy decided with the liberal wing of the court on this one.  The court's conservative bloc — Roberts, Alito, Scalia, and Thomas — were less than pleased, and their dissent complained bitterly about "freedom of expression" being overridden by "prevailing standards of political correctness in our country's institutions of higher learning."  But that's neither correct, nor the point.  First of all, even if the Hastings non-discrimination policy was "politically correct", it still was constitutional.  And secondly, the CLS still can express themselves however they want; they just aren't entitled to funding for being discriminating.

This is one of those cases that goes to the issue of "special rights" versus "equal rights".  I hear a lot of conservatives saying things like "oh, those gay people want special rights", and it drives me crazy.  A "special right", I suggest, is when somebody asks for something that nobody else gets.  So when gays seek to get married just like straight people, that's not seeking a "special right" — it's seeking an "equal right".

In this Supreme Court, the CLS was essentially seeking a "special right" — i.e., a right that no other student group on campus had.  They wanted to have the right to keep certain people out of its group and receive student funding.  And no other group on campus could do that.  The Student Democratic Caucus had to let in Republicans (although, one would wonder why a Republican would want to join)… and so on.  This ultimately is why CLS lost the case.