Legal Commentary

I was very disappointed by the decision in the CLS case.  (Disclosure:  I submitted an amicus brief in support of CLS.)  Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters.  I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled.  For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc.  I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).

I recommend, by the way, my Mirror of Justice colleague Rob Vischer's post on the case (here).  Here's a bit:

[T]he majority noted that the law school?s (alleged) ?all comers? policy could be a reasonable expression of the school?s desire to encourage tolerance, cooperation, and learning among students.  Fair enough.  But, the majority added, to the extent that the policy ?sometimes produces discord,? the law school can reasonably include among its goals for the policy ?the development of conflict-resolution skills, toleration, and readiness to find common ground.?  The message to CLS: ?you nutty evangelicals have the opportunity to learn tolerance and cooperation by admitting all students, even those who defy your group?s animating beliefs; if you find that this policy creates discord, you have the opportunity to learn conflict-resolution skills.?  Obviously, the same skill sets could be equally in play with a policy that permitted groups to pursue their own chosen beliefs, with significantly less fallout for associational freedom and expression. 

. . .Justice Stevens, in his concurring opinion, notes that ?the policy may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths.? (emphasis added)  Note what this phrasing communicates about the Justice?s mindset.  I?ve never met a CLS member or leader who desired ?to exclude students of particular faiths.?  The point, for CLS and every other religious group of which I have been a part, is to engage in the mutual formation and expression of truths held in common.  A desire to exclude is not the point of the project, nor is the exclusion aimed at ?particular faiths.?  The exclusion is a consequence ? and usually a consequence that is neither celebrated nor trumpeted ? of a commitment to meaningful inclusion.