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.


Bob Hockett said...

Nice thoughts, Mike, many thanks.

Here's a quick thought of my own, prompted by yours: I'm tempted to say that 'tolerance' must usually be indexed by some particular activity that is the object of the tolerating in question. So one tolerates particular forms of speech or spoken words, one tolerates religious practices of various (for simplicity's sake assume nonlethal) sorts, etc.

There is, in other words, a sort of 'direct object gap' that implicitly follows the word 'tolerance' in most of its occurrences, and that gap must usually be filled before sentences in which the word appears bear determinate semantic content.

Now once toleration is thus indexed by form of activity in this manner, it seems to me more plausible to hold would-be beneficiaries of toleration to a sort of clean hands doctrine. If you would invoke a principled right of free speech, you must not invoke it to protect your speaking against others' right to free speech or exercise thereof. If you would appeal to a principled right to worship in a particular (again I'll assume non-lethal) way, you will not be heard to deny others' right, pursuant to the same principle, to worship in alternative (non-lethal) ways. Etc.

If this is a sound way of understanding tolerance, then CLS, as objectionable as I myself find some of their tenets (so far as I understand them) to be, might not be intolerant at all in the sense that would debar them from claiming a right to propound and live by the (non-lethal, I take it) views they espouse. At least that is so if they do not deny the rights of others to propound and live by differing views, and to associate with those of like mind.


Thanks again,

michael a. livingston said...

I think you prejudice the issue when you label the group "intolerant." In the same sense it might be said that American society is "intolerant" of adultery or sex between adults and children. There is no neutral position from which to evaluate whether it is the group or the broader society which is in fact being intolerant, which of course doesn't answer the question, but suggests some humility before imposing one's views on others.

Michael C. Dorf said...

I think perhaps my use of the loaded word "tolerant" (and its variants) has led Bob (slightly) and Michael (very much) astray. I was using the word tolerance/toleration only because it is the key word to the relevant longstanding debate on the limits of liberalism. I agree with Bob that CLS qualifies as tolerant within the Rousseauian formulation: Its members would not deny freedom to persons who hold different religious views. Nonetheless, I think this case is part of the larger problem of how liberalism deals with groups that are, from the mainstream's perspective, illiberal.

Contrary to Michael's suggestion, I haven't loaded the dice at all. That should be evident from the breadth of the UC Hastings Law School policy. As cashed out, the policy forbids any official student group from excluding any student who seeks membership on any grounds. Indeed, the CLS cert petition makes exactly the point that it would exclude advocates or unrepentant practitioners of adultery. In my view and the view of the Ninth Circuit, the First Amendment precedents simply do not give CLS a right to be intolerant of adulterers or NAMBLA members or any other Hastings law students--if CLS wants funding. (Things would be different, I agree and I said in the post, if CLS was being forced to abide by some general law or was being singled out for the denial of recognition and funding based on the content of its viewpoint rather than its conduct in how it selects members.) My conclusion and the Ninth Circuit's conclusion do not rest in any way on the view that adultery, gay sex between consenting adults, or sex between adults and children is a harmless activity. (In fact, I think that consensual gay sex is harmless, but that's not relevant to my analysis.)

Sam Rickless said...

Dear Mike,

According to the cert petition, the denial of official recognition results not merely in ineligibility for funding but also in lack of access to six different sorts of means for publicizing the mission of CLS. If the purpose of registering student organizations at UC Hastings is indeed to promote the expression of a variety of viewpoints, then it is going to be difficult for Hastings to win this one on the merits. It appears that other student organizations limit membership and yet have access to the six means. So what we have here looks like unequal treatment that could only be justified in a non-viewpoint-neutral way. This is not going to fly with the Supremes, and I predict that they will vacate the 9th Circuit's ruling (as they regularly do).

If I remember the public forum doctrine, the fact that Hastings has created a limited public forum does not permit it to make PR means available to some student organizations but not to others (without some sort of compelling reason). And I do not see any compelling reasons here. [Analogy: suppose UCSD tells the Christian Student Union that they will not be given access to the school mainstage to stage a play. That won't fly either.]

Now I would distinguish between *access* on the one hand and *funding* on the other. Access to all purpose means of publicizing the CLS (such as use of the school mail system and so on) is needed to "promote the expression of a variety of viewpoints", for it is clear that denial of access will make it very difficult for the CLS to spread its message and publicize its events. I suppose that being recognized as a student organization should also make CLS *eligible* for funding. But I do not see why Hastings should be forced to *fund* CLS if it also funds other organizations. After all, there is only so much money to go around, and it seems perfectly acceptable for the committee charged with the job of distributing funds to student organizations to draw the line at organizations that discriminate on grounds of race, sex, gender, nationality, sexual orientation, hair color, and so on. The idea that Hastings would be forced to fund the League of Aryan Students just because it funds other organizations is absurd. Funding decisions need not be viewpoint-neutral. Am I missing something?


Michael C. Dorf said...

Sam: Hastings definitely contests the cert petition's characterization of the record. According to Hastings, no other student organization has EVER barred an interested student from membership. Other student groups purport to reserve the right to expel members who act contrary to the group's respective missions, but this power has apparently never been exercised. Thus, Hastings is correct in its claim--and the district court and the Ninth Circuit were correct in finding--that the non-recognition policy does not turn at all on the content or viewpoint of student expression.

The funding point is quite interesting and will be a piece of what I talk about in my FindLaw column next week.

Sam Rickless said...

Thanks, Mike But I wonder whether the distinction between (i) an organization that reserves the actually but contingently unexercised right to limit membership and (ii) an organization that reserves the actually but contingently exercised right to limit membership is a distinction without a difference. Am I really free to join the Democratic club if I am subject to being kicked out for, say, belonging to the Green Party club too, even if I am never *actually* kicked out of the Democratic club? An organization limits its members in the relevant sense not merely when it actually kicks people out but when it tells potential members that they are subject to being kicked out under such-and-such conditions. Truly open membership involves *not* reserving the right to kick people out.

michael a. livingston said...

I don't see how references to Rousseau, etc. vitiate my point. Words are always chosen carefully in legal argument. The choice of the term "intolerant" as opposed to, say, "upholding moral standards that have been recognized by every civilized society since the dawn of recorded history," is intended to and has the effect of casting the argument in a very particular light. To add casually at the conclusion that you just happen to disagree with the entire principle that is being advanced by the CLS only adds to my point.

Jonathan Noble said...

It seems the Court must determine which, if any, of the six means of PR can be categorized as a "limited public forum". How would the Court go about that?

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