Post by Mike Dorf with a Contribution by Michael McConnell
My latest FindLaw column digs into last week's cert grant in Christian Legal Society v. Martinez, about which I also posted preliminary thoughts here. As I read the cases, Hastings should win, I say, but that's no guarantee that it will win. My column also proposes a split-the-difference compromise in which Hastings would be able to deny direct funding to student groups that do not permit all students to become members but would not be able to deny such groups access to the school's media for communications, such as the email system. I note, however, that this compromise appears to be ruled out by the Court's rejection of something similar in the Rosenberger case.
After I finished writing my column, but before it went up, I received an email from Stanford Law Professor (and until recently, 10th Circuit Judge) Michael McConnell, who will represent the Christian Legal Society (CLS) in the Supreme Court. Below is Michael's commentary in response to my first blog post on the cert grant. My own reaction then follows.
I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.” The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.
There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith. Must synagogues hire non-Jewish rabbis? Must a Baptist Bible study group have a Catholic chair? The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience. Others are free to attend the CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs. There is nothing wrong or “intolerant” about this. It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message. But only when it is the religious group has the Hastings administration cried foul.
And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman. Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place. These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual). Others do not. But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.”
It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out. But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.
Which side in this case is being “intolerant”? Those who want to meet and speak just like every other student organization, or those who have kicked them out?
[And now my, i.e., Michael Dorf's, response]:
Some of Professor McConnell's disagreement focuses on my use of the term "intolerant" in my earlier post, to characterize the attitude of CLS towards sexual minorities. As I explained in the comments section to that post, in response to a similar objection by Professor Michael Livingston (yes, we're all called Michael; it's a very popular name, deriving from the Hebrew "Who is like God?"), I used the term mainly because that is the standard translation of Rousseau's point. Perhaps I might have been more precise to pose the question this way: "Must liberal standards of inclusion of all persons and groups extend even to those groups that, in their own governance, reject the very standards of inclusion of the larger society?"
In any event, McConnell's objection regarding who is tolerant and who is intolerant operates at a higher level of abstraction than the one at which I was working. He says "it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else." I say it depends on the content of the moral standard. Suppose the moral standard condemns inter-racial dating and inter-racial marriage, as Bob Jones University did when the Supreme Court, in 1983, upheld IRS revocation of its tax-exempt status on that basis. Or suppose the moral standard insists on the subordination of women by men. I think that denunciation of "unrepentantly" gay and lesbian Americans as sinners is on a par with racism and sexism, and that it's fair to call any of these views "intolerant," even if rooted in religious conviction. Perhaps McConnell would draw distinctions among these views, but if not, then his objection can only be to my use of the word "intolerant" as a synonym for "inegalitarian."
Of course, if Hastings were urging the silencing of CLS, then it could rightly be labeled illiberal or even intolerant. But it is not. As my FindLaw column explains at greater length, no one disputes that an organization like CLS could limit its leadership or membership on various grounds. The question is whether it's entitled to a subsidy while doing so. In general, government has considerable power to refuse to subsidize activities that it could not directly regulate or prohibit, and conservatives usually like that fact. Just ask Bart Stupak. To be sure, the Supreme Court's "public forum" doctrine limits the refusal-to-subsidize power in certain contexts, but as I discuss in the column, it is far from obvious that Hastings has violated that doctrine. Both the district court and the Ninth Circuit thought otherwise.
And with good reason. McConnell says the case poses the question "whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief." But the religious basis of the CLS exclusion is not the reason that Hastings refuses to recognize CLS as an official organization. Hastings denies official recognition to ANY student organization that excludes ANY student for ANY reason. Maybe that's a sensible policy; maybe it isn't; I'll have a few thoughts on that issue tomorrow. But so far as the key First Amendment issue goes, there is no discrimination against any viewpoint, religious or otherwise, by Hastings. The issue is not what effect the policy has on CLS; the issue is what the Hastings policy targets. It's true that Hastings hasn't denied recognition to any other group yet, but the record shows that no other group excludes prospective student members.
Perhaps McConnell really wants religious organizations to be exempt from the rules that apply to everyone else. The Supreme Court rejected this approach to the Free Exercise Clause in Employment Division v. Smith. McConnell has produced the finest scholarship there is criticizing the Smith rule on historical and other grounds--and I myself have considerable sympathy for the view that Smith was wrongly decided. However, Smith remains the law, and CLS v. Martinez is being litigated as a free speech case, not a free exercise case. The effort--if that is what it is--to dress up a claim for a religious exemption as an objection to censorship should fail. But McConnell is a skillful advocate as well as a fine academic. Perhaps he will win the case after all.