If one has any doubt about the impoverished state of our public discourse regarding key social concepts such as “diversity” and “discrimination,” look no further than last week’s decision by the Supreme Court in Christian Legal Society (“CLS”) v. Martinez. The case stemmed from the University of California-Hastings School of Law’s decision to withdraw recognition from the student chapter of CLS because, while the group permitted any student to participate in its events, it required that its members and officers affirm a statement of faith, part of which says that biblical standards prohibit “all acts of sexual conduct outside of God’s design for marriage between one man and one woman [including] fornication, adultery, and homosexual conduct.” CLS claimed that the law school’s withdrawal of recognition violated its constitutional rights to free speech, free association, and the free exercise of religion. The law school asserted that its policy is fair and neutral, requiring all student groups to be open to all students. The Supreme Court agreed, reasoning that, while the First Amendment “shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be,” CLS “enjoys no constitutional right to state subvention of its selectivity.”
Martinez’s importance derives not so much from any dramatic extension or rewriting of constitutional doctrine, but from the shared mindset that appears to have animated the law school’s actions and the Justices’ interpretation and evaluation of those actions as reasonable. Before exploring that mindset, though, we need to clarify what this case is not. CLS did not set out to defy a law school edict that all student groups accept “all comers,” nor was CLS aiming to be supported by taxpayer funds. The evidence suggests that CLS was targeted for exclusion based on the content of its particular membership policy, and the case was never about money.
On the first point, though the Court treated the law school’s policy as though it requires all student groups to accept any student who wishes to join, the procedural history is murky. The evidence in the case suggests that the denial was made pursuant to a school policy prohibiting discrimination on several grounds, including religion and sexual orientation. Ignoring the applicability of this policy in favor of a purported “accept all comers” policy was a significant move by the Court, for it is much more difficult to portray as “viewpoint neutral” a policy that prohibits discrimination based on sexual orientation or religion compared to a policy that requires completely open membership. A viewpoint-neutral policy is much easier to defend against First Amendment challenge. The Court pinned its analysis on the fact that, during the course of litigation, the parties jointly stipulated that the law school has an “all comers” policy. As the dissent points out, the stipulation did not indicate whether the policy was applied to—or even in effect for—the law school’s denial of CLS’s request to be recognized as a student group. The so-called “all comers” policy had not been mentioned, much less put down in writing, until litigation had already begun. The fact that many student groups at the law school espouse belief-based membership requirements shows, at a minimum, that any such policy was not enforced against any group other than CLS.
Second, while it is easier to dismiss the liberty claims of a group when the “liberty” espoused is the right to support at taxpayers’ expense, the funding in this case was minimal. But the consequences of de-recognition were not. CLS lost access to reserved meeting space, school communication channels, student orientation fairs, and student activity funds. Yes, CLS was free to exist, to meet off campus or to scrounge for (and perhaps pay for) on-campus meeting space when all other student groups’ needs were met, but CLS was effectively cut off from the life of the university, from easy access to student email, from the visibility that is the life-blood of organizations hoping to thrive in the marketplace of ideas that is supposed to be at the center of student life. As CLS noted in its reply brief, “to university students, the campus is their world,” and “the right to meet on campus and use campus channels of communication is at least as important to university students as the right to gather on the town square and use local communication forums is to the citizen.”
So if the significance of Martinez cannot be explained away as the enforcement of a neutral open membership requirement or as a straightforward government funding case, what are the case’s lessons? Put simply, the case is a lesson in the legal norms surrounding dangerously amorphous concepts such as “diversity” and “discrimination,” and is an example of how those concepts can contribute to a robust, thick conception of the common good . . . or not. There are central questions that do not even appear to be on the radar screens of universities, courts, or other decision-makers that are shaping the course of these conversations: Is “discrimination” always bad? If diversity is an important value in our society, where does associational diversity rank? Does our framework of liberty include the right to exclude? The factual history and legal analysis of Martinez leave us to wonder whether we even have the resources and inclinations as a society to engage these questions, much less to draw meaningful distinctions among types of discrimination.
Standing up for associational freedom need not crowd out the legitimate place that anti-discrimination norms hold in a society that has admirably labored to remedy past injustices toward, and continuing marginalization of, certain segments of society—including gays and lesbians. At the same time, anti-discrimination norms can corrode the core beliefs that animate associational life. In this regard, CLS sensibly emphasized before the Court that its membership policy focuses on beliefs (e.g., does the student affirm Christian teaching?), not status (e.g., their sexual orientation), and that the law school could constitutionally enforce a policy that prohibited groups from discriminating based on status. This was a sensible distinction to concede, for while a coherent group identity requires an ability to select leaders who share the group’s beliefs, a state institution committed to equality need not offer its support to groups dedicated to the categorical exclusion of racial, ethnic, or sexual minorities.
The Martinez Court did not buy the distinction. The majority observed that policing a distinction between status on one hand, and conduct or belief on the other, would present the law school administration with a “daunting” task. The Court then invoked Lawrence v. Texas (the case that is the proverbial gift that keeps on giving), noting that “our decisions have declined to distinguish between status and conduct in this context.” The Martinez Court quoted Lawrence’s reasoning that “when homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”
A religious student group’s right to participate in the life of the university without jettisoning its animating beliefs may seem to raise starkly different considerations than the state’s power to criminalize sexual conduct engaged in primarily by a certain category of individuals, but apparently the status-conduct distinction is no longer viable in either category. Not surprisingly, the Martinez Court’s application of Lawrence in this context did not escape the notice of the plaintiffs looking to overturn California’s same-sex marriage ban, who promptly filed a letter with the trial court in that case, announcing that the Supreme Court has now “held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.” Whatever the collapse of the conduct-status distinction may mean for marriage, it does not bode well for associations seeking to maintain fidelity to beliefs that include the disapproval of homosexual conduct.
Equating a belief-based membership policy with status-based discrimination may also reflect a view that religious groups such as CLS are motivated by an exclusionary animus. Justice Stevens, in his concurring opinion, notes that the law school’s “all comers” membership requirement “may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths” (emphasis added). Note what this phrasing communicates about the Justice’s mindset. I have never met a CLS member or leader who desired “to exclude students of particular faiths.” They desire to engage in the mutual formation and expression of truths held in common. A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.” Moreover, the CLS membership policy is not aimed at gays and lesbians specifically, but at the affirmation of a Biblical view of sex. A CLS leader indicated to me that no student chapter has ever been confronted with a situation where they needed to remove an openly gay student from leadership; student chapters regularly remove heterosexual students from leadership for engaging in extramarital sex. These exclusions are a consequence—and usually a consequence that is neither celebrated nor trumpeted—of a commitment to meaningful inclusion.
But Justice Kennedy couldn’t see the force of these arguments and argued in his concurring opinion that if “students were required to avow particular personal beliefs” as a condition of membership, this “might undermine the principle that in a university community . . . speech is deemed persuasive based on its substance, not the identity of its speaker.” The Justice reminds us that “the era of loyalty oaths is behind us,” and a school “quite properly may conclude” that a “belief-affirming requirement” could be “divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”
One hardly knows where to begin in addressing Justice Kennedy’s assumptions about the nature of meaningful group identity. Suffice to say that, under his reasoning, there would be no student groups dedicated to the pro-life or pro-choice causes, to environmentalism, to particular political platforms, or to any substantive position on a contested issue. There would only be groups classified by subject matter. That’s certainly one vision of associational life, but it has very little connection with the historical American vision. Justice Kennedy, meet Tocqueville.
Our struggle to define and demarcate “discrimination,” to identify the sort of diversity that is conducive to a vibrant, participatory, and just society, and to figure out how formal legal norms can support these projects is primarily a political inquiry, not a constitutional one. The Martinez Court’s holding has pushed the constitutional dimension further from view, and the Court prudently recognized that its decision is not the final word, explicitly cautioning against confusing the advisability of the law school’s policy with its constitutional permissibility. The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.
Robert K. Vischer is associate professor at the University of St. Thomas Law School in Minneapolis. He is the author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge University Press 2010).