Supreme Court Deals Blow to Liberty

by David French

Monday, June 28, 2010, was a landmark day for liberty—but not in the way that most conservatives realize. News outlets led with stories of the Supreme Court’s gun rights ruling in McDonald v. Chicago (Matt Drudge even announced the ruling with one of his famous “siren” graphics) and then quickly shifted their attention to Elena Kagan’s confirmation hearing. Lost in the shuffle was a second Supreme Court decision, one that contains a line of reasoning that threatens our understanding of what liberty is.

That case, Christian Legal Society v. Martinez, dealt with a seemingly simple issue: Could a university require a Christian student organization to open its leadership and voting membership to those who disagree with the group’s faith or who refuse to abide by its code of conduct? In other words, could the university require a Christian group to be led by Muslims or by people who disregard biblical commands regarding, for example, sexual behavior.

Common sense would dictate that a group should be able to limit its membership and leadership to those who share the group’s purpose. After all, who ever heard of a Republican group led by Democrats, an African-American group led by white supremacists, or a vegetarian group led by cattle ranchers? But this involved a university, where common sense is always trumped by political correctness, and this particular school (Hastings College of Law in San Francisco) said that each student group had to open its membership and leadership to every student on campus.

This “all comers” policy destroys freedom of association—the constitutional liberty to form a group around a shared purpose—and the Christian Legal Society sued to protects its rights. After a long and winding litigation road, the case reached the Supreme Court, and on Monday the court ruled against the Christian group.

The 5-4 decision was written by Justice Ginsburg and was joined by Justices Sotomayor and Breyer. Justices Stevens and Kennedy filing concurring opinions. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas.

Justice Ginsburg’s opinion, contains a dangerous contention. To the court’s majority, the Christian Legal Society was simply arguing for special, or “preferential” treatment when it filed suit. According to the court:

“CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The 1st Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

Put in plain English, the court is allowing the university to put in place a policy that destroys the free-association right of all student groups, then is accusing the one group with the courage to challenge that action of seeking a “preferential exemption.” Since when did the defense of longstanding constitutional rights become a quest for special treatment?

Underlying the court’s reasoning is a dangerous view of the enormous breadth of government power. In the court’s eyes, students who want to meet in empty classrooms (rooms their tuition and tax dollars pay for) are receiving a government benefit, not exercising a fundamental right. In the court’s eyes, these “benefits” (broadly defined) can be made contingent on forcing citizens to surrender their most basic liberties. Cato’s Roger Pilon summed it up perfectly:

“That is a new standard for constitutionality when it comes to fundamental rights. And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says, “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.”

Not only is the court’s decision to equate the defense of fundamental rights with a quest for “special rights” legally suspect, it has a pernicious effect in the public square. Many Americans—especially conservatives—are outraged when groups seek special favors or special exemptions from generally applicable laws. To cast the Christian Legal Society in that light brings automatic suspicion to their claims.

The bottom line is that the government—whether acting through Congress or through a university administration—should not have the power to regulate away our fundamental rights. And those groups courageous to stand against such a power grab are defending liberty, not seeking special status.