The great hope of the U.S. Supreme Court is that it can be a place of diverse viewpoints, open minds, and subtle persuasion. Reasonable minds might differ. Kind of like a college campus. But more and more often, the high court looks like it's composed of two separate clubs, whose members regard one another with only hostility and suspicion. Justice Stephen Breyer may be right today when he concludes that the time for discussion and persuasion and hugs is gone. Apparently now we can only learn from our own.
Today's oral argument tests whether a college anti-discrimination policy trumps a campus religious group's right to exclude members who are either gay or not Christian. Christian Legal Society—the student group bringing today's challenge against U.C. Hastings—is represented by Stanford Law School's Michael W. McConnell, a former federal appeals court judge, one of the most country's foremost thinkers on matters of church and state. In 2004, when it affiliated with the national CLS group, the U.C. Hastings branch changed its bylaws to require voting members and officers to sign a statement of faith that precludes "unrepentant participation in or advocacy of a sexually immoral lifestyle" and to pledge "to live their lives accordingly." Hastings advised CLS that because its ban on gay and nonbelieving leaders and officers violated the school's nondiscrimination policy, the group could still operate but would not be treated as one of about 70 registered student organizations, with access to school funding, facilities, e-mail, and bulletin boards. CLS sued, Hastings won in the lower federal court and again at the U.S. Court of Appeals for the 9th Circuit.
This is an unbelievably hard case, pitting a religious group's basic right to define and preserve its core beliefs against a publicly funded university's effort to ensure that school-sponsored and -funded groups do not discriminate on the basis of religion or sexual orientation. But judging from the ideological zeal of today's battle, you'd think the case was open-and-shut. The liberals are for nondiscrimination. The conservatives are certain that liberals plan to infiltrate unpopular Christian groups for nefarious purposes. If there was any hugging, I missed it entirely.
Complicating the big constitutional matters is a factual dispute over whether Hastings changed the description of its nondiscrimination policy over the course of this litigation. There's an even bigger battle raging over joint stipulations filed in this case. It seems that while CLS denies that Hastings has an "all-comers" policy—meaning that in order to be a registered student organization, you need to allow all students to join—it has already stipulated to this fact during litigation. CLS claims that "all-comers" is a pretext for a policy that singles out CLS for exclusion. Indeed, pretextual is one of the kinder words McConnell uses today. (Silly, crazy, and preposterous come up too.) So messy are the claims and counterclaims about what, specifically, the Hastings' policy may be, that Justice Anthony Kennedy opens his questioning by demanding: "What is the case that we have here?" A few minutes later, he chides, "It's frustrating for us not to know what kind of case we have in front of us."
Justice Samuel Alito says that he understood the school policy was that "anybody who applied to any group would be admitted" but that this "was the stated policy but not necessarily the actual policy that was employed." Ruth Bader Ginsburg reminds him that CLS has already stipulated to, and is bound by, the fact that Hastings has an "all-comers" policy, but McConnell replies, "We stipulated that this was their policy. That stipulation contains nothing about how Hastings has actually applied it."
Justice Antonin Scalia warns McConnell that "you are going to waste your whole time just discussing this stipulation point." This telegraphs that if McConnell won't start arguing the religious and free-expression angles, then he, Scalia, may have to do it for him. McConnell, taking the hint, describes the school's anti-discrimination policy as "a frontal assault on freedom of association. Freedom of association is the right to form around shared beliefs."
Justice Sonia Sotomayor cuts him off: "Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?"
McConnell explains that school groups that discriminate on the basis of status, race, or gender may not be constitutionally protected but that it's clearly unconstitutional for the university to punish groups that discriminate on the basis of "belief." He adds that the whole point of the university policy "is to promote a diversity of viewpoints among registered student organizations. If the student organizations are not allowed to have a coherent set of beliefs, there can be no diversity among them." When Sotomayor points out that perhaps the university's goal is just to have students who don't discriminate, McConnell warns that an all-comers policy would mean that "an NAACP chapter would have to allow a racist skinhead to sit in on its planning meetings."
Kennedy again shows unease with the CLS position when he says, "Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don't we also have a tradition of separation? That's the whole reason why church and state for many purposes are kept separate, so that states are not implicated with religious beliefs."
Sotomayor adds, "You keep talking about being forced to let people in. ... But your group is not being excluded or ostracized completely from the school. Presumably you can meet in the cafeteria, you can meet in open spaces. ..."
Breyer, echoing Kennedy, seems to be sufficiently bothered by the lack of a clear factual record that he wants to pitch the case as "improvidently granted."