09 Jul 2010 Supreme Court Throws Christian Students to the Lions
It seems Mary Kay Kane, former Dean of Hastings College of Law, and her administration opposed the views held by the Christian Legal Society on their campus, so they threw ‘em out.
Last week, while the media focused a good deal of attention on Elena Kagan’s vapid and hollow charade confirmation hearing, the nine current Supreme Court Justices finished another term. The Court’s decision in McDonald v. Chicago was a victory for all those who can read the Second Amendment, however, its decision in Christian Legal Society v. Martinez struck a major blow to First Amendment advocates everywhere.
In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.
The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.
The facts of the case are straightforward. In his dissent, Justice Samuel Alito explained:
“The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines, including the belief that the Bible is “the inspired Word of God.” In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” The resolution made it clear that “a sexually immoral lifestyle,” in CLS’s view, includes engaging in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” It was shortly after this resolution was passed that the Hastings chapter of CLS applied to register with the law school.” (Internal citations omitted).
Well that all seems pretty uncomplicated. But when far-left school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”
It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.
The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.
The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.
The issue before the Court, according to the Hastings’s CLS group was,
“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”
According to the majority, the Constitution forbids this outrageous activity. How dare Christians think that they should be allowed to freely associate with … other Christians! Unthinkable!
Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.
In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,
“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).
How dare the Christian Legal Society seek to be comprised of Christians!
In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”
Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”
Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.
The possibilities are endless.
The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”
Not so fast, Justice Ginsburg.
In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.
Writing for Townhall, Professor Mike Adams, a devout Christian, offered his thoughts on what can be done about the atheists on his campus:
“So, when I get back to the secular university in August, I plan to round up the students I know who are most hostile to atheism. Then I’m going to get them to help me find atheist-haters willing to join atheist student groups across the South. I plan to use my young fundamentalist Christian warriors to undermine the mission of every group that disagrees with me on the existence of God.”
“Justice Ginsburg was not impressed by the argument that the policy allows students hostile to a group’s core tenets to disrupt the group’s mission, or even destroy the group altogether … But I intend to make such concerns a reality for the unbelieving heathens.”
His full article can be found here. While the article has a certain tongue-in-cheek quality, the possibility of campus discord is very real.
Law schools should be a forum for healthy, open, and honest debate. The forum is muddled when administrators, liberal or conservative, attempt to limit freedom of speech.
What Ms. Kay did to Christian students and what Ms. Kagan did to military recruiters is shameful.
Who knows, maybe Ms. Kay is just positioning herself for an Obama nomination to the Supreme Court as well.