Notes From Babel

Christian Legal Society v. Martinez

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I have not yet read the decision, but I wanted to relay the key portions of John Eastman’s and Erwin Chemerinsky’s contrasting positions on the decision:

John Eastman:

I think this is a very unfortunate decision.  I actually think it’s perfectly appropriate if a Jewish student group wants to limit its membership to people that share that faith.  Or if a gay and lesbian group wants to limit its membership to people that share that orientation or advocate for that cause.  And similarly that the Christian Legal Society group wants to limit its membership to those that share the Christian faith.  That’s the whole point of diversity in our student organizations, is that you allow people to join the club that is tied to their religious beliefs or their political views or what have you.  Hasting’s policy is saying that everyone has got to be open to everything means that differentiation among the groups will not be permissible other than just by chance. I think that’s unfortunate. I think it undermines the kind of diversity of ideas and opinions that we want to foster with our school groups.

Was it unconstitutional?  The Court has now said no, by a very narrow five-to-four vote, with a sliver of hope for Christian Legal Society yet if there’s a way they can unravel themselves from that stipulation, and say that Hastings was applying this selectively to their group because of their religious views, then there might be an opportunity for them to stay on campus.  Otherwise, they’re going to have to go off campus, underground, not have access to the billboards, and the email system of notification of their members of the meetings, the normal things you expect a student group to be able to do.  I think our law schools, our public institutions will be worse for it.

Erwin Chemerinsky:

I want to also strongly disagree with John here.  I’m the dean of a public university law school, and I strongly believe that all officially recognized student groups should be available to all students.  If a group wants to have an exclusive membership, let it do so off campus.  But it shouldn’t be getting public or student activity money, it shouldn’t be using facilities.  Now, in the rare case where there might be a takeover, where it might be that the Jewish students want to take over the Christian Legal Society, or the males want to take over the women’s law society, Justice Kennedy said, let’s deal with that reality when it happens, because it never does.  That’s really what he’s saying.  But I think it’s so important here, that schools be able to include all students in all student groups.

As you might expect from me, an Eastman protege, Eastman has the better argument here.  The First Amendment does not require public schools to push “neutrality,” if ever there could be such a thing.  Indeed, it would appear that the “all-comers” policy at schools like Hastings is overtly secular-friendly, allowing groups that have nothing to do with established religion to operate freely, while severely hamstringing groups like the Christian Legal Society.  Want to start a criminal justice society or a legal fraternity?  No problem.  Want to start a club oriented to members or sympathizers of a religious or ethnic group?  Better look to a private institution.

There is an odd phenomenon that goes on in public education.  The Court has become convinced that the government is so essential to public education that it must establish an entirely separate doctrine of freedom of speech, and now freedom of religion and freedom of association, to apply in our schools and universities.  Our Founders did not intend this.  The federal government, for one thing, was never meant to meddle in state educational institutions.  And allowing students to do what they will with their time and energies does not offend the establishment clause.  Even if these students use the school’s email system and facilities, as a matter of common sense, this does not rise to the level of a “law respecting an establishment of religion.”

As a nation, we’ve gotten much too worked up over Jefferson’s “wall of separation” metaphor.  We ought to stick with what the First Amendment actually says.  If we do, we’d find that it does not go the first step toward supporting the Court’s opinion in CLS v. Martinez.

(On the other hand, Eugene Volokh’s brief comment on the case is worth reading here.)

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Written by Tim Kowal

June 30, 2010 at 12:54 am

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