I’ve been reading on the Internet a bit about the recent Supreme Court decision in Christian Legal Society v. Martinez. (Opinion of the Court can be found here, and a New York Times article about it can be found here.)
At issue was whether the University of California’s Hastings College of the Law had to formally recognize the Christian Legal Society (CLS) as a student group on campus. The law school argued that it did not, because the student group did not conform to its nondiscrimination policy. The Christian Legal Society, which has 165 student chapters across the nation, disallows voting rights or officer positions to those who engage in “unrepentant participation in or advocacy of a sexually immoral lifestyle” (that is, homosexuals). The law school did not want to recognize a group that did not allow full membership to anyone who wanted it.
As evidenced by the opinion of the Court that I linked to above, the Court voted 5-4 in favor of the university.
As expected, this made conservatives, right-wingers, and even some proclaimed “libertarians” pretty unhappy. Students for Liberty declares that the ruling “undermines the freedom of association on campus.” The Foundation for Individual Rights in Education (FIRE) also declared that the ruling “undermines freedom.” These people and groups claim it is the CLS’s First Amendment right to bar homosexuals from membership from their organization. Ergo, the recent Court ruling is antithetical to liberty, free speech rights, and the right to “freedom of association.” Even Filip Spagnoli, a firm defender of human rights, states, “the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.”
The question, as it always is, is, “Is it true?” (Bravo to me for using three is‘s a in a row. Apologies for poor prose!) Well, it certainly is true that the the CLS has the First Amendment right to bar whomever they please from membership, including homosexuals. Freedom of association certainly allows that, as Dr. Spagnoli keenly points out. However, as Dr. Spagnoli also correctly points out, “Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.”
While the student group certainly has the First Amendment right to exist, they have no right to public subsidy. The First Amendment gives people and groups the right to free speech and association, but not the right to have your speech subsidized. That is found no where in the U.S. Constitution. The Court affirms this view point. While affirming the CLS’s right to exist, the Court ruled that the U.S. Constitution offers the group no right to have their speech or views subsidized or supported by others.
Justice Stevens said that, while the U.S. Constitution “may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them. . . . [O]ther groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”
What I find to be hypocritical in the extreme is that those who claim to be defending “freedom of association” deny the university’s right to freedom of association. If the law school does not wish to associate with or subsidize patently discriminatory groups, that ought to be their right. So, in effect, I believe the Court’s ruling was a win for freedom of association rights.
Update: Dr. Spagnoli admits the following: “It seems I glossed over a crucial distinction: getting yourself banned and losing subsidies. The latter isn’t a rights violations and that is what happened. The former would have been but that’s not what happened.” I agree with him here.