Supreme Court okays viewpoint discrimination

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Ruth Bader Ginsburg: Wrote horrifying decision

Lost in all the bickering over the (correctly decided) Supreme Court's snuffing of Chicago's handgun ordinance is another (incorrectly decided) high court decision trashing other freedoms enumerated in the Bill of Rights.

Those are the rights to free speech, expressive association and free exercise of religion -- among the first of all the freedoms guaranteed in the Bill of Rights.

The shocking decision denied a campus Christian association the same access to a university's funding and communication resources that are available to about 60 other student groups. The group is the Christian Legal Society, an association of Christian lawyers and law students. The intolerant school is the Hastings College of Law, a part of the University of California.

The society has a biblical worldview that includes, among other things, a belief that sex outside of marriage -- heterosexual or homosexual -- is sinful. The society is inclusive, in that everyone is invited to attend its meetings, but to become a voting member you have to sign its statement of faith, which includes, besides the tenets about sexual behavior, the acceptance of Christ's divine nature and the Bible as the word of God.

The school administration denied CLS recognition because, the administration said, the group violates Hastings' nondiscrimination policy that forbids discrimination based on race, gender and sexual orientation. The rules say the group must accept "all comers," even those who find its beliefs abhorrent and who, by strength of numbers, could overwhelm the group's purpose.

CLS' suit argued that the university's exclusion violated the group's First and 14th Amendment rights. But the district court and the Ninth Circuit Appeals Court ruled for the school. The Supreme Court, in a 5-to-4 decision, agreed.

In this, the court overthrew a series of its own holdings in which "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." This admission comes, remarkably enough, from Justice Ruth Bader Ginsburg, who wrote the majority opinion upholding the school. Ginsburg then proceeded to ignore precedent and explained that this is a special case. Why? You'll have to read the opinion (Christian Legal Society v. Hastings) yourself to see if you can decipher its muddled reasoning. In any case, so much for stare decisis, the idea that the court is bound by previous holdings.

In his dissent, Justice Samuel Alito said, "Brushing aside inconvenient precedent, the (majority) arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups -- groups to which, as Hastings candidly puts it, these institutions 'do not wish to ... lend their names[s].'"

One precedent (Healy v. James; 1972) held that a school had to recognize Students for a Democratic Society, even though its members refused to disavow violence. The school president had refused to give SDS recognition, concluding that its philosophy was "antithetical to the school's policies," and that it was part of a national organization whose published aims include "disruption and violence." But the court ruled "the denial of recognition substantially burdened the students' right to freedom of association."

In light of this, Alito's opinion scorched the majority: "The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'. ... Today's decision rests on a very different principle: no freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

Surely, each of us could find at least one Hastings students group whose "expressive associations" we thought were unworthy of public funding, e.g., a pro-life or a pro-choice group. Or perhaps Hastings, in pursuit of its "all comers must be members" policy would find no objection to the Young Republicans flooding and taking over the Hastings Democratic Caucus. Or members of the Hastings Jewish Law Students Association becoming overwhelmed by new members sent over from the Hastings Association of Muslim Law Students or the Middle Eastern Law Students Association.

All kinds of discrimination correctly are unlawful, such as racial discrimination. The legality of other kinds of discrimination, such as gays in the military, still is being debated. But one kind of discrimination clearly cannot and ought not be allowed, and that is viewpoint discrimination. That a major scholastic institution and the Supreme Court do not understand the difference is alarming.

This column also appeared in the Chicago Tribune

Comments

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  • Again we have the few deciding for the many.This is a good time to pick on christians,we won't take to the streets burning cars and stores so push us around.A perfect example of the freedom of speech as long as it's their speech we're talking about.Kagen will just give these loony libs another vote.

  • So you're saying that a group who discriminates is the victim of discrimination. That's a bit of a stretch.Christianity is not being discriminated against. It's the campus organization's exclusionary policies which go against the institution's policies. They aren't saying they can meet, they're just saying we're not endorsing you as an official organization of the University of California. It's simple PR, endorse biggots, you are labeled a biggot.

  • It's a unique case which the decision is even more unique. Great law firms briefed the case on each side and the decision may embrace viewpoint discrimination, but under those circumstances it is a bit of a stretch.
    Darren Chaker

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