Tuesday, December 08, 2009

Court Grants Cert in Rousseau v. Holmes (sorta)

By Mike Dorf

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  (Cert petition here; Opp cert here.)  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.  I'll have more to say about the case in the coming weeks and months, but for now I want to make a few preliminary points.

1) On the very broad question of tolerance of the intolerant, we can point to two champions of polar absolutist positions: Rousseau argued that tolerance only need extend to those prepared to extend full tolerance themselves: "Now that there is and can be no longer an exclusive national religion, tolerance should be given to all religions that tolerate others, so long as their dogmas contain nothing contrary to the duties of citizenship."  O.W. Holmes, Jr., by contrast, said tolerance must go all the way: "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

2) Must we choose between Rousseau and Holmes?  Surely not.  Even the Dutch--whose famous tolerance has given rise to a backlash by those who say they have been far too tolerant of anti-liberal Islamists living among them--do not go the full Holmesian route (as nicely illustrated in a fascinating little piece by Ian Buruma in last week's New Yorker: Abstract only, available here).  U.S. First Amendment law reflects the point as well: Under the compelling interest test, even "voluntary" human sacrifice could be stopped, etc.  Still, to say that the state need only tolerate some but not all intolerant speech, religion, and association is only to recognize that there are hard questions here.

3) I honestly don't know how this case will turn out in the Supreme Court.  The Ninth Circuit analyzed it as a "forum" case, i.e., presenting a conflict between a private speaker and the government in its role of controlling access to a kind of public property, rather than a conflict between a private speaker and the government as regulator.  There is little doubt that under the Supreme Court's right-of-association cases, the government could not simply dictate the membership policy of an expressive association like CLS.  Surely CLS has at least as much of an articulate message as the Boy Scouts (who won their right to dis-associate from gay members so as not to dilute their homophobic message in Boy Scouts v. Dale).  But if one accepts the Ninth Circuit view that the case is really about access to a certain kind of government forum, then the First Amendment applies much less strictly.  Here, as elsewhere in constitutional law, deciding what legal standard applies is at least 90% of the game.

4) The CLS cert petition emphasizes the religious mission of CLS but under the Supreme Court's interpretation of the Free Exercise Clause, that is irrelevant.  A Free Exercise claim would lose: The UC Hastings non-discrimination policy does not single out religion or any particular religion, and so it need only be minimally rational, which it certainly is.

5) The Hastings opp cert relies on district court findings showing that until a few years ago, CLS had no problem with openly gay and lesbian members.  The trouble arose when the national CLS started insisting that its chapters make prospective members take a pledge that, as interpreted by the national organization, required excluding "unrepentant" sexual minorities.  In a sense, there is a battle here for the moral high ground.  The CLS imagines itself as a small band of Christians dissenting from the politically correct law school orthodoxy and being thrown to the lions for it.  Hastings envisions the CLS students themselves as pawns or dupes of a national organization that is simply itching for a fight.  Whether any of this is relevant to the legal question is unclear.

I have more to say on this case, but I'll save it for another day.