June 28, 2010

The Christian Legal Society loses its 1st Amendment challenge to the accept-all-comers policy required by Hastings Law School.

Justice Ginsburg writes for the majority in Christian Legal Society v. Hastings College of the Law, answering yes to the question: "May a public law school condition its official recognition of a student group — and the attendant use of school funds and facilities — on the organization’s agree­ment to open eligibility for membership and leadership to all students?" The CLS wanted to restrict membership to those who would sign a "statement of faith" and to exclude those who engage in "unrepentant homosexual conduct."

Justice Ginsburg expresses deference to the law school's reasonable and "viewpoint-neutral" policymaking:
Hastings... could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes—and to build this expectation into its educa­tional approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.
That final "if" is important, and it takes a lot of the wind out of the sails of the dissenting opinion written by Justice Alito. From the dissent:
In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague.
The majority is deferring to the law school, and not preemptively dealing with this other situation which hasn't happened and which it would prefer to trust the law school to deal with if in fact it ever does happen.

***

Note: Justice Ginsburg was present in Court for the announcement of today's opinions, even though her husband died yesterday.

64 comments:

Chip Ahoy said...

Okay, what?

Can you explain this again the way my father used to fashion an orrery by shifting around S/P shakers and a sugar bowl?

downtownlad said...

It is utterly astounding that there were even 4 votes against this.

A university club must be open to all students.

And 4 justices voted against this, solely because of the threat that some of those students might be "teh gay".

former law student said...

Can you explain this again

Law student groups funded by taxpayers can't discriminate against their peers.

former law student said...

I'm not surprised Ginburg came into work today, to receive the support and condolences of her peers and associates. She won't formally see them all again till fall, right?

downtownlad said...

Can you imagine if Scalia at all had won this case.

I could see it now. All clubs, except this Christian club, getting together and deciding that "Republicans are not allowed."

And the school would not be able to stop it.

Do you think that this possibility even entered Scalia's head? Of course not. He can only think of discriminating against gay people and can't imagine himself being discriminated against.

ricpic said...

In other words first you let individuals who are hostile to the rules of a club or actually want to wipe out that club into the club, then when the trojan horse has done its damage you "revisit" the question.

shoutingthomas said...

I wouldn't join this group. Given the now universal pandering to gays, you'd have to be nuts to do so.

Why are we all kissing gay ass so furiously?

It was only a few decades ago that gay men caused the AIDS epidemic, thus proving that the purported stereotype is true

Now, Christians are bigots for speaking the basic truth.

The rest of this thread will be, I guarantee you, lie piled on top of lie.

First liar to pull out the Jim Crow bullshit wins!

former law student said...

In other words first you let individuals who are hostile to the rules of a club or actually want to wipe out that club into the club

And then you have liberal moles infiltrating the Federalist Society. Oh God, where will it all end?

former law student said...

Why are we all kissing gay ass so furiously?

Kinky.

paul a'barge said...

If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions

Calling all homosexual liberals! Message: clear. Mission: crater Christian student groups.

DKWalser said...

...I could see it now. All clubs, except this Christian club, getting together and deciding that "Republicans are not allowed."

And the school would not be able to stop it. ...


This begs the question of why law schools should be funding clubs in the first place. Clubs, in the usual sense of the word, are organizations that include like-mined individuals by excluding people who have dissimilar interests or views. For example, the local woodturning club rightly limits its membership to those interested in woodturning and excludes those who would want to use club time to discuss cabinet making. (Not that some woodturners are not also interested in cabinet making -- the two pursuits are not mutually exclusive -- it's just fostering discussions about non-woodturning topics is not consistent with the purpose of woodturning club.)

If the law school were to sponsor a woodturning club (lawyers need a hobby), the school's policy would allow students join the woodturning club and vote to divert it's budget to promoting cabinet making (or some other non-woodturning pursuit). The remedy, according to the court, would be for the school to step in and prevent that from happening. Which means, the school retains the ultimate right to control the club and dictate its operation. This would seem to put the school in the role of censor of disfavored viewpoints and the promoter of favored viewpoints. Why should the school adopt this role? Why should students be forced to subsidize the school's role of censor/promoter of viewpoints? (The school is funding the clubs, in part, out of the student's tuition and fees.)

If student's desire to be members of a club or organization, let those students fund their choices. This should be the rule for public institutions.

AJ Lynch said...

Is this the end of groups like the Black Student Union or do they accept non-blacks?

Ann Althouse said...

"This begs the question of why law schools should be funding clubs in the first place."

The clubs want to use the rooms in the building, quite unsurprisingly. That's the main thing.

AJ Lynch said...

I guess these non-sanctioned clubs could just rent the school space at FMV? Is that a way around this ruling?

Chase said...

This is where downtownlad is full of shit and obviously on his way to an everlasting torment - and I couldn't be more delighted. He didn't bother to read what this was all about: the demise of an organization. And he and the other haters won't talk about it because they can't.

They got this one wrong, wrong, wrong. Any gay can JOIN - but can't be elected to run the group. Why is that a problem? I am seriusly considering funding students that will find a small gay organization, join, get elected to run it and then close it down. Several groups in fact.


Hastings presumably would revisit and revise its policy.

What are the odds of that? Seriously. What are the odds.

The First Amendment took a hit, but that's okay. It can now be used to bite hate-filled assholes such as dtl somewhere down the line.

Dust Bunny Queen said...

"This begs the question of why law schools should be funding clubs in the first place."

The clubs want to use the rooms in the building, quite unsurprisingly. That's the main thing.

So, according to this ruling, if the clubs/groups were to use private rooms or meet elsewhere, not in school facilities, would they then be able to discriminate or exclude people from membership?

I gathered that the decision was due to the financial support of the group from the school or the use of school facilities. Did I misunderstand?

Chase said...

You fucked up on this one Ann. Sorry you can't see past your own family in order to screw others.

Chase said...

You fucked up on this one Ann. Sorry you can't see past your own family in order to screw others.

MadisonMan said...

I gathered that the decision was due to the financial support of the group from the school

That was my guess too, from a brief skim over an article. I suppose they get money for speakers' fees, or for refreshments?

If Law Students have so much time on their hands that they are joining groups for the sole purpose of driving them into the ground, then Law Students aren't being given enough to do.

AJ Lynch said...

Schools will just get out of the business of sanctioning clubs. That makes it simple.

PatHMV said...

This may be a good result, in that it will encourage most controversial organizations to remove themselves from the school teat and function without the formal recognition of the university, a governmental agency. The key will be for conservatives to demand that it apply equally to liberal and humanistic organizations as they will demand it apply to religious and conservative organizations. Christians will need to insist on joining the Muslim Student Association, for instance, if they aren't left alone in their own Association of Christian Athletes group, for example.

Blue@9 said...

This decision is retarded, a virtually Mutual Assured Destruction policy for student groups. Sure, the Knitting Society will be fine, but any contentious ideological or identity-based group is ripe for exploitation and destruction. Talk about letting your ideological purity blind you to the reality of human interaction.

I'm amazed at the retarded comments at the beginning of this thread. "A university club must be open to all students."

Yeah? So you're cool with forcing student religious groups to take on committed atheists? Black student orgs have to take on bigots? The point of a club is to get like-minded and similarly interested people together for mutual benefit. What's the point of a club if the club's raison d'etre is now totally irrelevant to the membership?

"Welcome to the Lawyers' Guild! Oh, you're actually a committed right-winger and you're only hear to spy on us and then destroy us from within? Well, welcome to the club I guess."

former law student said...

I suppose they get money for speakers' fees, or for refreshments?

It's all about the "free" pizza.

former law student said...

The point of a club is to get like-minded and similarly interested people together for mutual benefit

But the purpose of law school is to learn the arts of advocacy, particularly to argue on either side of any issue. Vigorous dissent within student organizations would promote these skills.

Big Mike said...

The majority is deferring to the law school, and not preemptively dealing with this other situation which hasn't happened and which it would prefer to trust the law school to deal with if in fact it ever does happen.

On the surface this looks perfectly reasonable. But given downtownlad's comments inpast threads, I think Alito is closer to the mark than Ginsburg. Or you, Professor.

DKWalser said...

...[T]he purpose of law school is to learn the arts of advocacy, particularly to argue on either side of any issue. Vigorous dissent within student organizations would promote these skills.

While there may be exceptions, I doubt most religious oriented clubs value "vigorous dissent". They may value vigorous discussion, but dissent is not the kind of thing that promotes a "club like atmosphere".

Blue@9 said...

The point of a club is to get like-minded and similarly interested people together for mutual benefit

But the purpose of law school is to learn the arts of advocacy, particularly to argue on either side of any issue. Vigorous dissent within student organizations would promote these skills.


All of law school is about arguing? Not sure what law school you went to, but mine sure had stuff like a Muslim Law Students Association, a Federalist Society, public interest groups, and the like. And shouldn't it be up to the group itself whether they want vigorous dissent? Who are you to tell any group "Oh, you want a non-contentious discussion group? Fuck you, take some haters and deal with it!"

When I was raising funds for public interest fellowships, I don't recall ever thinking, "You know what would make this org even better? A bunch of people arguing against public interest law."

former law student said...

And shouldn't it be up to the group itself whether they want vigorous dissent?

The arguments presented here against the decision appear to assume that club members would meekly fold their arms and let their clubs be hijacked. Passive resignation is not a trait welcomed in lawyers.

And considering Christianity's penchant for schism, and for wars between rival groups of believers (over a century in Europe, including the Thirty Years War), and a crazy proliferation of mutually intolerant sects (see the American colonies from Massachusetts to Maryland), the idea that a Christian club could somehow remain dissent free is rather laughable.

holdfast said...

1) Organize homosexual Hassids to join the Muslim Students Association.

2) ???

3) Profit!

MadisonMan said...

So you're cool with forcing student religious groups to take on committed atheists? Black student orgs have to take on bigots?

Yes.

I think the speech that would go on at the meetings might actually cause people to learn something from outside their cocoons of comfort.

Blue@9 said...

And shouldn't it be up to the group itself whether they want vigorous dissent?

The arguments presented here against the decision appear to assume that club members would meekly fold their arms and let their clubs be hijacked. Passive resignation is not a trait welcomed in lawyers.


Yeah, and what will vigorous resistance do? You still can't kick them out. If you've got a 20-member Lawyers' Guild group and 40 conservative disruptors join, you are SOL.

Blue@9 said...

So you're cool with forcing student religious groups to take on committed atheists? Black student orgs have to take on bigots?

Yes.

I think the speech that would go on at the meetings might actually cause people to learn something from outside their cocoons of comfort.


And right there my First Amendment fire alarms go off. Who the fuck are you substitute your own judgment for those in such groups? Why the fuck is the gov't forcing people to interact with each other? Essentially, someone in a gov't capacity is substituting his own judgments about "benefit" and "utility" in place of those already determined by these people. People aren't fucking robots. If a member of the Federalist Society wants to have a discussion with a liberal, he's free to do so of his own accord--why the fuck is the gov't forcing him involuntarily associate?

Bryan C said...

"Why the fuck is the gov't forcing people to interact with each other? "

Those people asked the government to provide the facilities and the funding. So the better question might be, why is the gov't responsible for enforcing the rules of a private club and thereby preventing people from associating with one another in a public place?

The best outcome would be for all these clubs to realize that accepting public funding is the kiss of death for their autonomy. Then they can rent their own space, buy their own coffee, and admit whomever they choose. Oh, and demand a refund of those tuition costs that would otherwise have supported a bunch of useless clubs.

MadisonMan said...

If a member of the Federalist Society wants to have a discussion with a liberal, he's free to do so of his own accord--why the fuck is the gov't forcing him involuntarily associate?

Because money received from the Government has strings attached.

Trooper York said...

"former law student said...
Can you explain this again

Law student groups funded by taxpayers can't discriminate against their peers."

They can only discriminate against Army recruiters. That's just fine.

Or at least it will be soon if Elena has anything to say about it.

"RELEASE THE KAGAN"

former law student said...

They can only discriminate against Army recruiters. That's just fine.

Hey, Harvard is a private school. Per Rand Paul, that means they can keep out whoever the hell they like, for any reason, or no reason at all.

ken in sc said...

So, the Vegetarian Law Students group has to allow people who eat meat, right? Wrong, if everyone in the group is a legitimate student in the school, the school should accept the group. If the group is so evil that it cannot be accepted, the student members should be expelled.

Salamandyr said...

I'm not overbothered by this decision; however, I have the suspicion the minority would have ruled differently had the discussion been over anything besides gays.

former law student said...

So, the Vegetarian Law Students group has to allow people who eat meat, right?

In SF, meat eaters who want to join the VLS would be welcomed as "diet-curious," or "diet-questioning." Although some members would condemn them without giving them a chance

Blue@9 said...

They can only discriminate against Army recruiters. That's just fine.

Hey, Harvard is a private school.


It's a private school that accepts gov't financial assistance for students.

So the better question might be, why is the gov't responsible for enforcing the rules of a private club and thereby preventing people from associating with one another in a public place?

The law school already has the space. Clubs and student groups are an indelible part of the school experience. You wouldn't want to go to a school without clubs anymore than you'd want to go to a restaurant without chairs. So the question is, what is the relationship of the school to the clubs and orgs formed by students? IMO, the school should provide space and possibly funds if the student body votes for it.

What they should not do is emplace its own membership requirements or internal rules of organization. To do so is to destroy the very essence of a club, which is the voluntary association of like-minded or similarly interested individuals. If you force them to take everyone, why even bother having a club?

Pogo said...

This is how our neighborhood group was very nearly co-opted by a developer in town.

He was pissed because our group successfully petitioned the City Council to reject section 8 housing towers, so he sent 6-7 people and they all nominated themselves to the board at election time. Of course, none had ever been to a meeting before.

I speechified about their intent and the neighbors got all pissed off and the effort was thwarted, but the Supreme Court does not seem to understand Alinsky very much.

former law student said...

he sent 6-7 people and they all nominated themselves to the board at election time.

From CLS's brief, members can be kicked out if they don't think Mary was a virgin, or if they don't believe in the Triune God. But the kicker here was the prohibition on sex outside of marriage (yeah, that works) which, in the absence of SSM means gay members must be celibate.

Pogo said...

"...which, in the absence of SSM means gay members must be celibate"

The don't join that club.
But what will happen is the club will cease to exist; formally, anyway.
By law and by SCOTUS, all must conform.

Better watch out what you wish for, because the former CLS members will learn that bullying works, and is condoned by the SCOTUS, and will try to out-Alinsky your more liberal groups, or make their meetings a complete waste of time by arguing every goddamned point.

Synova said...

"And then you have liberal moles infiltrating the Federalist Society. Oh God, where will it all end?"

How about all the frat boys joining the Female Lawyers Club? What a lark!

All this ruling seems to say is that clubs can make whatever efforts they wish to limit their membership just so long as they do so for reasons in line with popular opinion. That the school can put whatever rules in place that it wishes to put in place without Constitutional limits on those decisions.

Unpopular opinion can be suppressed. Perhaps *should* be suppressed?

And no matter that DTL is having the vapours, we judge our freedom by how tolerant we are of the things we hate, not by how well we enforce right thinking.

Clubs for *any* exclusionary group (including ones based on race or gender along with religion) probably shouldn't be made part of the school to begin with, but one thing is true. ALL of the students pay the fees. And since that is true, ALL of the students should be able to have their little private club have access to facilities. They shouldn't have to apply for approval or even have to declare themselves or their membership requirements, only that they are students.

Synova said...

"And considering Christianity's penchant for schism, and for wars between rival groups of believers (over a century in Europe, including the Thirty Years War), and a crazy proliferation of mutually intolerant sects (see the American colonies from Massachusetts to Maryland), the idea that a Christian club could somehow remain dissent free is rather laughable."

Schism is a tool for peace.

All of those wars weren't about the proclivity for schism, but the unavoidable consequence of trying to force unity.

Class factotum said...

the end of groups like the Black Student Union or do they accept non-blacks?

(shrug) There were white kids in the black student group in my high school.

AJ Lynch said...

Mad Man said this re allowing atheists to join religious clubs:

"I think the speech that would go on at the meetings might actually cause people to learn something from outside their cocoons of comfort."

That may be the most PC thing I have ever heard except for when the LA perp said "can't we all get along?"

Mad Man- you must have had a brain fart. Should a stamp collecting club give equal rights to members who have no interest in stamps? The premise is ridiculous. And what is wrong with seeking a cocoon of comfort anyway? It's a basic human need.

Chase said...

Hey, Harvard is a private school.

A private school that receives federal funds. Which means the government has a say - Remember, Bob Jones University, and the Government that the school cannot discriminate in interracial dating.

Harvard can have the largest endowment of any university in the world (it does)but you can't platy both sides. With federal money comes federal strings.

fls - your smarter than that.

Next?

Francis J. Beckwith said...

Apparently, forming a club is not an act between consenting adults. Who knew?

Pogo said...

"(shrug) There were white kids in the black student group in my high school."

Were the white kids "learning the art of advocacy", and practicing "vigorous dissent"?

Now that I know the SCOTUS endorses this method, I'll have to give it some thought in regard to groups I dislike, especially if they receive any gummint funds..

holdfast said...

Blogger MadisonMan said...

Because money received from the Government has strings attached.

A better case for libertarianism was never made, sir, I salute you. Of course, when that government money came with strings in the form of military recruiters and the Solomon Amendment, little Elana got all wee-weed up.

Seriously though, if all the club is getting is access to unused space, and if there is no immediate limit to the number of clubs, why non let the boring Christians have their non-sex club? I mean seriously, why do these idiots care - it is clearly not a club they would enjoy joining.

former law student said...

With federal money comes federal strings.


Nobody was making a libertarian argument so I thought I would pitch in.

former law student said...

why non let the boring Christians have their non-sex club?

Why let one group lay claim to all of Christianity? Their Statement of Faith was narrow enough to leave out many perfectly fine Christians. Many gays believe themselves to be Christian, for one thing. Mormons think they are Christians. Could they join? So now does the school recognize two (or more) Christian Legal groups? Does the school have to scrutinize the charters of each, and sort out who should apply to which group?

Some, not all, Christians are fundamentalists. How many times do you have to be born to qualify? Can you take a little wine for your stomach's sake? What about dancing and card-playing?

All of a sudden we have 15 Christian Legal groups, all of which want to use a classroom at lunchtime, and all of which want money for pizza.

Further, though the club claimed to ban all members who had sex outside of marriage, I tend to doubt they enforced that equally across the entire membership. Did they have a sex patrol unit making bed checks?

Paul said...

Related parody: Neanderthal Wins Lawsuit Against Gay Group http://optoons.blogspot.com/2010/04/neanderthal-wins-lawsuit-against-gay.html

SteveR said...

My solution is to ban all student groups. What a waste of time. College is for studying, drinking, smoking, and trying to get laid. There are plenty of real groups off campus if you feel the need to belong.

craig said...

So I assume everyone here is OK with Christians joining gay students' clubs and transforming them into advocacy groups for reparative therapy to cure homosexuals of their same-sex attraction? If not, then how about homosexuals joining the Christian clubs to stir up arguments over the Christian injunction against homosexual behavior? Because that's what being "open to all students" means: the club as a free association of like-minded individuals is dead. If universities can't handle intellectual diversity, let them ban all clubs of all kinds.

former law student said...

the club as a free association of like-minded individuals

That describes almost no clubs in law schools. What's "like-minded" about the members of the Justinian Society? They all like pasta?

mccullough said...

The problem here is that the majority would go apoplectic in other circumstances if government conditioned money on an individual's right to association.

Receive Medicaid? Then you can't join any political party or voluntary for any political campaign. Ginsburg would be up in arms over this view-point neutral law.

Palladian said...

I funnel my gay depravity into sketches as well as sex. Art, unlike law school, is a fertile field where the seeds of both religious ecstasy and homosexual deviancy can germinate without interference from the Supreme Court.

Palladian said...

Of course the perfect answer to the Supreme Court, university administrations, douchebag commenters on either "side" of this issue and, most all to law school clubs of all sorts is to quote Groucho Marx:. "Please accept my resignation. I don't want to belong to any club that will accept people like me as a member."

Chase said...

What's "like-minded" about the members of the Justinian Society? They all like pasta?

LOL!

Of course the perfect answer to the Supreme Court, university administrations, douchebag commenters on either "side" of this issue and, most all to law school clubs of all sorts is to quote Groucho Marx:. "Please accept my resignation. I don't want to belong to any club that will accept people like me as a member."

You do have a point . . .

Synova said...

"Further, though the club claimed to ban all members who had sex outside of marriage, I tend to doubt they enforced that equally across the entire membership. Did they have a sex patrol unit making bed checks?"

Yes, indeed, did they?

So if however many hetero students could be in the group only by lying, how is that any different than allowing gay students who were willing to lie?

Many Christians very seriously pursue chastity and want to be around people who will help them with that difficult thing. How irrational is it, really, to maintain that the heterosexual young people can be told not to have sex but the homosexual young people are rutting animals? What does it really mean to say that *this* person is able to go without sex because God requires it, but *that* person is not able?

And the supposition of never ending divisions of yet more Christian groups is as silly as anything. The *proper* response to the no-sex group is a more liberal Christian alternative. Then the students can decide who to hang out with. Instead the plan seems to be to disallow the no-sex portion of this group's purpose.

It's not a trivial purpose and it is absolutely based in religious faith. For those who have a desire to abstain from sex in the face of an absolutely permissive culture of casual sex and hook-ups, the support of others with the same desire is particularly valuable and even necessary.

I believe that is was Mark Steyn who suggested that sexual license is a stand-in in the face of our profound loss of liberty. As long as we are sexually "free" we don't seem to notice that our other freedoms and our essential liberty is pretty much gone.

Who cares about freedom of association or speech or thought if no one is harshing your sexual expression?

I mean, what's the deal here? Is someone anticipating an uncontrolled explosion of chastity on law campuses if it's not nipped in the bud?

Chase said...

I believe that is was Mark Steyn who suggested that sexual license is a stand-in in the face of our profound loss of liberty. As long as we are sexually "free" we don't seem to notice that our other freedoms and our essential liberty is pretty much gone.

Thank you Synova. That is the most accurate and relevant statement on American culture made in the last 50 years, bar none.

sonicfrog said...

Here's a question no one seems to have asked (or I missed it).... Why are my tax dollars funding campus clubs? I mean really; have fund raisers, car washes, sex poodle grooming... what ever.