Liberty and equality are the two foundational principles of this nation: the Declaration of Independence mentions, among its "self-evident truths," that all men are created equal and that liberty is one of their inalienable rights. But are these two principles sometimes at odds with each other? Conservatives and libertarians have long cautioned that the modern-day liberal conception of equality would ultimately undermine if not destroy liberty. While these warnings may seem alarmist, a new ruling from the Supreme Court may lend them some credence and set a dangerous precedent in sacrificing freedom for equality's sake.
The case, Christian Legal Society v. Hastings, involves a small Christian group at Hastings College of Law, a part of the California State University system. In 2004, the college refused to register the CLS chapter as an official student organization because, its officers were told, its bylaws are in violation of the college's non-discrimination policy—specifically, its religion and sexual orientation clauses. Each member is required to sign a "Statement of Faith" affirming belief in a number of Christian tenets, including the Bible as "the inspired Word of God." In accordance with the organization’s national policy, the bylaws also state that "unrepentant participation in or advocacy of a sexually immoral lifestyle"—that is, any sexual conduct outside heterosexual marriage—can be a disqualification from membership.
The CLS sued, accusing the college of religious discrimination and arguing that non-religious campus groups—for instance, ones based on political affiliation—were allowed to limit their membership to people "dedicated to their organization's ideals and beliefs," while the CLS was prohibited from doing the same. Shortly afterward, college officials began to articulate a new policy: every registered student organization had extend full membership to any student who was willing to pay dues, attend meetings, and behave civilly toward other members.
Even leaving aside the principle of free association, the policy seems rather absurd on its face. Do the College Republicans have to welcome Democrats as members, and vice versa? Does a feminist student group have to admit people who openly believe that men are divinely ordained to rule over women, and to allow them to vote on issues related to the group’s activities and policies? Formally, according to Hastings College, the answer is yes. In a 5-4 ruling this week, the Supreme Court sided with the college.
In a stinging dissent, Justice Samuel Alito accused the majority of ignoring the salient facts of the case—such as the fact that the Hastings "all comers" policy seems to have been specifically tailored to exclude CLS. The policy had never been mentioned prior to the group's lawsuit, and indeed college administrators had previously acknowledged that non-religious groups were allowed to include a student's viewpoints in their membership criteria. Moreover, the CLS remains the only campus group to have been denied registration.
The majority opinion, penned by Justice Ruth Bader Ginsburg, also downplays the policy's negative consequences for the campus CLS chapter—which has continued to function without official recognition but has been denied not only funding but the use of various campus facilities. Thus, the ruling suggests that lack of access to campus resources is sufficiently offset by the existence and scope of social networking online. As Alito put it, "This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad."
The majority glibly dismisses some of the concerns raised by the plaintiff—for instance, that under the "all comers" policy, a student group might be intentionally taken over by people who oppose its original mission. Ginsburg even suggests that law students have too much dignity and maturity to stoop to such tactics. Considering the glee with which "progressive" students have sometimes shouted down speakers they consider racist, sexist, or homophobic, it's fair to suspect that quite a few of them would see such a "hostile takeover" as a hilariously creative way to combat bigotry.
Some strong advocates of free speech, including UCLA law professor Eugene Volokh—a noted legal scholar of a libertarian/conservative bent—have voiced approval of the Supreme Court's ruling. Volokh argues that while we are entitled to our constitutional rights such as freedom of association, we are not entitled to have these rights subsidized, and that the college was therefore on firm legal ground in withholding recognition and subsidies from CLS, whether under an "all comers" policy or under a more straightforward non-discrimination one. In his view, religious discrimination can be rightly treated as more unfair and "socially corrosive" than discrimination based on other viewpoints. Yet surely, there is a difference between excluding Jews or Muslims from, say, a campus athletic club and excluding them from a Christian group. It has long been recognized that protections against religious discrimination do not apply to those activities to which a person's faith is central.
As for the issue of public subsidies, Justice Alito stresses that the CLS was effectively barred even from activities that would not have imposed any extra costs on the college—such as setting up a table at a campus fair.
Moreover, the question of public subsidies may have far-reaching implications beyond college campuses. A city could argue that any group which benefits from municipal services such as police and fire protection or even electricity is "publicly subsidized," or that public parks should be off-limits to groups whose policies are deemed discriminatory.
Writer Wendy Kaminer, a noted civil libertarian—and a liberal feminist whose beliefs could not be further away from those of the CLS—seems on firm ground when she argues that what's really at stake here is trampling on a group whose beliefs are highly unpopular in its social environment. How would people feel if, at a public university that happened to be dominated by religious conservatives, a gay-rights group was denied recognition because it refused membership to people who openly espouse anti-gay views?
Cathy Young writes a weekly column for RealClearPolitics and is also a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/. This article originally appeared at RealClearPolitics. This column previously appeared at Reason.com.