Christian Legal Society v. Martinez

by Walter Olson on June 28, 2010

By a 5-4 vote, the Supreme Court upholds a policy at the University of California’s Hastings Law that gives short shrift to the principle 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 didn’t.

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June 30 roundup
06.30.10 at 12:11 am

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1 Anonymous Attorney 06.28.10 at 3:10 pm

* One wonders how it would be received if a Christian fundamentalist joined the gay student group — and made his views known at meetings — or a Palestinian activist joined the Jewish student group and did the same.

* The legal profession always makes me laugh with this one. Here you have some of the world’s most exclusive people lecturing the rest of us on the need to be “inclusive.” How much more exclusive can you get than your typical law school or law firm?

* I challenge anyone to tell me what right is more fundamental than the right of association. It’s more important than free expression, that’s for sure. You never would have created the right of free expression if a group of like-minded men hadn’t gotten together to set that down (England forces royalists to attend Constitutional Convention). It really is the “right before all other rights.” Libertarians may balk because it’s a group right more than an individual right. Is it an international right? As in, the right of a nation to determine what laws it will set and who it will allow as a citizen? The issue is fascinating, and to my mind, grossly understudied by the academy and under-recognized by the bench and bar.

2 nevins 06.28.10 at 5:07 pm

As groups of like minded individuals become less able to control who becomes their associates, their policy and purpose, and their leaders, the more all groups will begin to look the same as anyone of differing opinion infiltrates to dilute the original group. Let’s just ban any assemblage of three or more persons right now and be done with it.

3 Dave H 06.28.10 at 5:12 pm

As I read this, this decision merely affirms the right so Hastings Law to refuse to subsidize groups (with public money, or “student fees”, apparently) that do not adhere to it’s policies. What in the world is wrong with that? Is anyone seriously suggesting that a campus chapter of the Ku Klux Klan (or a Nation of Islam Student Association) should be recognized and subsidized because to do otherwise would deny the right of free association of the members? I think not …
Nobody’s right to associate has been abridged here – the Christian Legal Society is free to continue meeting and blathering WITHOUT a subsidy from the school or the entire student body. What has been done is to deny a subsidy to a group that refused to conform to the policies of the organization from which it sought said subsidy.

4 Bumper 06.28.10 at 6:41 pm

Dave H,

Yes, I would suggest that if the school is going to use public money to subsidize ANY group, then the school should subsidize EVERY group. Because to do otherwise is discriminatory. Limitation of the right of association is not a function of government. The microsecond after anyone takes it upon themselves to decide that someone else is good, bad or indifferent is when they start throwing the Constitution out the window. Political correctness is a terminal disease.

So, if the school wants to pay for some it should pay for all OR (better idea) pay for none. I was not aware that any institution of higher education in California was so flush with money that they could afford to piss it away on selective support of student organizations.

Sadly Justice Anthony Kennedy doesn’t seem to be able to make up his mind if he believes in the Constitution or not.

5 Commentor 06.28.10 at 11:02 pm

Bumper,

It is only illegal to discriminate based on certain fundamental rights. We don’t have any fundamental right to force people to associate with us.

6 Tim in Chicago 06.29.10 at 7:34 am

“One wonders how it would be received if a Christian fundamentalist joined the gay student group — and made his views known at meetings…”

I suspect there are Christian fundamentalist who are members of many gay student groups. And I suspect they are welcome as long as they advocate a Christian position on gay rights. More and more young Christians are coming to the conclusion that the mainstream conservative Christianist/political movement doesn’t represent Christianity and doesn’t represent their beliefs.

7 Tracey 06.29.10 at 9:55 am

Anonymous, you don’t take your example far enough. How about if a bunch of Christian fundamentalists join the gay student group, get a fundamentalist Christian elected president, and then start using the gay student group’s funding to bring speakers to campus on the subject of “curing” homosexuality. That’s what this decision protects. Doesn’t sound so great any more, does it?

This is not as far-fetched as it may sound to you. I know many Jews who are very concerned about this opinion, because it means the Jewish student group will have to accept fundamentalist Christians into their fold, who would use the Jewish student group’s money to fund evangelism to the Jews. Of course, the Jewish college organization I was involved with was funded entirely by donations from parents and from the Jewish community at large, so this would not have been an issue for us, but I can definitely see it happening at, say, the University of Georgia, where (at least when I was there) the Jewish population was minimal and evangelism to the Jews was rampant.

8 Bill Alexander 06.29.10 at 10:50 am

I believe the importance of “university support” represents not only money but also access to the facilities and ability to reserve rooms.

9 Frank 06.29.10 at 11:30 am

Only Christians.

Only whites. No Mexicans. Men only. No Commies. Irish need not apply (I know apocryphal in the US). No blacks, no muslims, no fat chicks.

The noive of that place.

10 Anonymous Attorney 06.29.10 at 11:57 am

Dave H:

Your point’s well-taken.

But I think the amount of subsidy here is probably negligible (cost of elecriticity to light the meeting room, etc.). I once worked for a group called the Atlantic Legal Foundation that challenged student-fee subsidies for the on-campus “PIRG” (public interest research group, a liberal outfit). Conservative students understandably didn’t want their money going to support such a group. The (3rd Circuit?) decided to ban forced funding for off-campus lobbying activity, which went too far, but kept it for on-campus stuff since that advanced the “educational mission” of the college.

Anyway, I see all these points, but so long as the subsidy is minimal, I guess I’d err on the side of having as much activity is possible. Meaning, yes, I’d have to pay a small amount to support a group I didn’t like.

For instance: American Renaissance, a “race realist” or “white advocacy” magazine, holds bi-annual conferences. The most recent one was shut down because of terroristic threats, and the police and press did and said nothing about it. If they requested police protection at taxpayer expense for the next conference, I’d fully support paying that — and making everyone else pay that. That is, a slight affirmative duty on the part of the government to see that the First Amendment is exercised.

11 Shucky 07.01.10 at 6:23 am

if the advocacy groups on the left think this won’t hurt them, they have another thing coming. anti-greens will sue their way into green groups, religious will sue their way into atheist groups, anti-muslims will sue their way into muslim groups, anti-feminists will sue their way into feminist groups, prolifers will sue their way into abortionist groups, whites will sue their way into other race-exclusive groups, anti-socialists will sue their way into socialist groups, republicans will sue their way into democrat groups, etc. anyone who doesnt respect freedom of association doesnt deserve it themselves.

12 Ace of Sevens 07.03.10 at 1:33 am

The things you are describing already happen to some degree. It happened to the atheist group at my school. Due to their numbers and organizations, evangelical Christians doing this sort of thing to atheist and gay groups is the main context I’ve seen it happen in. Hell, we had an obnoxious Linux advocate in the Mac users group. The groups tend to count on the fact of their subject matter to keep out the haters. If I didn’t like black people, I wouldn’t want to go to meeting of the black student union every week, for instance.

13 Skeptical 07.03.10 at 11:00 pm

Bosh. This isn’t an anti-religion decision, a moderate conservative decision, or a liberal decision. Neither is it an overly-lawyered decision. The case was an overly-lawyered attempt to erode the right of free association by demanding the state subsidize the assembly of a group that wants the state to pay for its assembling but excluding members eligible for access to those funds and facilities. That the suing is being done by fundamentalist Christians doesn’t make this an anti- religious decision.

Christians, grangers, trade unionists, and Klansmen want the right to assemble, not the state to control their membership. Educational institutions have an interest in there being the opportunity for students to socialize, argue, explore ideas, activities, that are widely and fluidly defined (meaning a chess club may be inactive while a web design club can be founded) within the purview of the most basic right that members of the academic community aren’t denying others from participating freely (or choosing not to).

And that certainly does mean that some argumentative jackass can make it so no one wants to be a member a member of a duly formed student group, or that the game of who get to count the votes for president becomes juvenile, and another group forms, or no one wants to participate, or meetings are shouting matches.

That’s how public institutions work, and the right to assemble and associate means it’s a right, not that taxpayers have to subsidize it.

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