Siding with sameness

July 1, 2010 

— Monday's Supreme Court decision in the Christian Legal Society v. Martinez case involved the clash of two fundamental values: equality and diversity. Diversity in this case would have allowed a Christian student group to prevent those who disagree with some of the group's core values from joining, and diversity should have prevailed.

At the very least, the court should have acknowledged that it was choosing equality over diversity. Its failure to do so makes this case a wolf in sheep's clothing - a clear privileging of one value over another without any meaningful recognition of the costs of that choice.

In this case, California's Hastings Law School refused to recognize a student chapter of the Christian Legal Society (CLS) because that group limited its membership to those who shared its beliefs. This Christian group refused to allow non-Christians and those who affirmed homosexual conduct to become group members and leaders. The law school determined that these exclusions violated its antidiscrimination policy and denied CLS official recognition.

The CLS membership requirements were inherently discriminatory and thus inconsistent with ideals of equality. But the group also depended upon this discrimination for its very existence. That is the fundamental dispute in this case, and even though the court narrowly sided with Hastings, it buried its choice of equality over diversity by refusing to engage seriously with CLS' freedom of association claims. Instead, as Justice Samuel Alito noted in his dissent, the court's "deeply disappointing" treatment of this case freed it from "the difficult task of defending the constitutionality" of Hastings' policy.

The court should have decided this case by choosing between two constitutional visions: a radical sameness that destroys dissenting traditions (religious, sexual or otherwise), or the destabilizing difference of a meaningful pluralism. Honoring one ideal sacrifices the other.

At Hastings Law School, CLS championed "values in direct conflict with the deeply imbued moral standards of much of the community whose taxes support the university." Thirty-six years ago, a federal appellate court characterized another student group in exactly these terms. It then considered whether the group's values were "so far beyond the pale of the wider community's values" that "university facilities [should] not be used by the group to flaunt its credo." That court wisely concluded that the Gay Students Organization of the University of New Hampshire warranted the protections of a meaningful right of association.

Our Supreme Court should have exercised similar judgment here.

Sometimes, equality should trump diversity, but context matters. This case didn't involve a soda fountain in the 1960s South. It involved a religious student group at a public law school in 2010 San Francisco. CLS is not a public accommodation, a public entity or a public good. It is a private association. Recognition would have brought modest benefits available to any other student organization.

Private associations of all kinds draw upon similar benefits in the form of tax exemptions and subsidies. Unless we want to abandon any notion of public and private, we are left with the responsibility of drawing sensible distinctions.

Christian student groups ought to be able to exclude non-Christians. Groups that object to homosexual conduct ought to be able to exclude those who disagree. Groups of Democrats ought to be able to exclude Republicans. Groups of environmentalists ought to be able to exclude people who don't care about the environment. That leaves us with diversity.

As Yale Law professor Stephen Carter has argued, "Democracy needs diversity because democracy advances through dissent, difference and dialogue."

During oral argument in this case, Justice Antonin Scalia reflected on the alternative: "To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy." And that is where the court has left us.

Justice Alito's dissent warns that Monday's decision "is a serious setback for freedom of expression in this country." But I fear far worse. Expression presupposes existence. And the court's decision doesn't silence CLS - it destroys it.

John D. Inazu is a visiting assistant professor at Duke University School of Law.

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