Monday, June 28, 2010

Justice Ginsberg Gets It Right

Majority opinion, authored by Ginsberg:

In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school sponsored forums because of the groups’ viewpoints. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Widmar v. Vincent, 454 U. S. 263 (1981); Healy v. James, 408 U. S. 169 (1972). This case concerns a novel question regarding student activities at public universities: 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?

In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First Amendment rights to free speech, expressive association, and free exercise of religion by prompting it, on pain of relinquishing the advantages of recognition, to accept members who do not share the organization’s core beliefs about religion and sexual orientation. From the perspective of respondent Hastings College of the Law (Hastings or the Law School), CLS seeks special dispensation from an across-the-board open-access requirement designed to further the reasonable educational purposes underpinning the school’s student-organization program.

In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

The opinion's fun reading because it's clear (at least within SCOTUS opinion-speak) that Ginsberg really doesn't like the dissent. No surprise there, Altio essentially calls Ginsberg a politically correct liar. His rhetoric is rather overheated (my guess is that he was one of the votes for cert. and now regrets it.)

There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization. See Brief for Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society) et al. as Amici Curiae 19 (affirmance in this case “will allow every public college and university in the United States to exclude all evangelical Christian organizations”); Brief for Agudath Israel of America as Amicus Curiae 3, 8 (affirmance would “point a judicial dagger at the heart of the Orthodox Jewish community in the United States” and permit that community to be relegated to the status of “a second-class group”); Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae 3 (affirmance “could significantly affect the ability of [affiliated] student clubs and youth movements . . . to prescribe requirements for their membership and leaders based on religious beliefs and commitments”). This is where the Court’s deci-sion leads.

I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.

Yes, it's amazing how marginalized the xians are in this country. To be clear, Alito's not talking about admitting nonbelievers to your church; he's talking about admitting them to a campus club. Any group that can't "in good conscience" do that, isn't trying to form a campus club; they're trying to form a church -- which cannot, under the Constitution, get state funding or support.

This was a 5 to 4 decision. Breyer and Kennedy were on the right side, this time. You can read the full opinion here.

Essentially, all that the opinion holds is that Hastings Law School wasn't required to give "recognized student organization" status (which includes some money from student activity fees, use of some school bulletin boards, etc.) to a xian group that excluded, for example, gays (well, at least "nonrepenetant" gays -- I guess it's ok as long as you feel bad about it afterwards and ask your god to forgive you). The group was still free to (and did) meet, communicate over social media networks, put up notices on other bulletin boards, etc. Because the requirement to "accept all comers" was content neutral, it was upheld.

What it means for Pagans is that they can't expect recognized student organization status if they want to exclude from their campus club xians or those who, for example, refuse to call East using the term "Guardians of the Watchtower," or who won't sign a pledge stating that only the Greek pantheon are "true" Gods and Goddesses. More importantly, it begins to put to bed the silly notion that unless xians get state funding and status to discriminate against others, then the xians are being discriminated against. Like everyone else, xians can play by the rules (not discriminate) and use the school's softball equipment, or they can discriminate all they want -- with their own ball and bat.

PIcture found here.


Anne Johnson said...

Thumbs up!

Morgaine said...

It's sad to see her go and I'm sending her light and love with the loss of her husband this week.