Looking Like a 5-4 Ruling

April 19, 2010 3:58 PM

Here's an update on oral argument on the Christian Legal Society v. Martinez case which was the subject of this (archived) thread. As the first commenter on the thread said, "Uh oh."
posted by bearwife to MetaFilter-Related at 3:58 PM (33 comments total)

You know, I've already been in a foul mood for most of the day, and this isn't helping. But I do thank you for the update.
posted by rtha at 4:01 PM on April 19, 2010

Ok, this quote just has to be repeated

"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?" asked Justice Sonia Sotomayor.

No, McConnell [Lawyer for CLS] said. "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis, Hastings is able to enforce."

"What if the belief is that African Americans are inferior?" Justice John Paul Stevens said.

"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.

Stevens!!!!
posted by kiltedtaco at 4:37 PM on April 19, 2010 [5 favorites]

a case that could determine whether nondiscrimination policies trump the rights of private organizations to determine who can — and cannot — belong.

Well, I don't see how the framing of "fairness 'trumping' the right to discriminate" could possibly be wrong.
posted by DU at 4:45 PM on April 19, 2010

the Supreme Court should have 10 justices, and when there was a 5-5 split , there would be a deathmatch between one of each of the opposing sides to determine the verdict.

Broadswords in a pit!

Not MetaFilter-Related.
posted by carsonb at 4:49 PM on April 19, 2010 [1 favorite]

I also don't see how a bunch of bigots are denied a right to associate simply because the campus they all attend won't fund them to do so.
posted by flabdablet at 5:08 PM on April 19, 2010 [9 favorites]

That's the part I'm having trouble with, too, flabdablet. Perhaps one of our mefi lawyer types will be able to address this. Hastings isn't saying (as far as I can tell) "You must believe/admit/do [thing we tell you to]"; they're saying "If you want school money and access to school facilities, here are some conditions you must meet." If they don't want to meet those conditions, they don't have to - but they have to give something (school money, which is in this case taxpayer money) up in order to do so.

It's almost as if this group is suddenly discovering why mixing state and church stuff together is not tasty and delicious.
posted by rtha at 5:17 PM on April 19, 2010 [10 favorites]

"What if the belief is that African Americans are inferior?" Justice John Paul Stevens said.

"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.

So what McConnell is saying is that a group that believes that African Americans are inferior should be allowed to get funding as long as they'd be willing to admit an African American who thought that African Americans were inferior?!?
posted by JaredSeth at 5:41 PM on April 19, 2010 [1 favorite]

rtha, flabdablet, I think you are correct. I would imagine that they only took the case in order to clarify the conflict between the two circuit courts.

The issue isn't discrimination, it is funding. I would be horrified if this wasn't a slam dunk for the supreme court. With the usual asterisk of a Scalia dissent. (It is as if he doesn't even understand the law at all... denying funding is not "requiring" anything.)
posted by gjc at 5:44 PM on April 19, 2010

denying funding is not "requiring" anything.

To a conservative, funding is a human right.
posted by DU at 5:56 PM on April 19, 2010 [1 favorite]

Dahlia Lithwick on the issue.
posted by Lemurrhea at 5:58 PM on April 19, 2010 [1 favorite]

I wonder what the difference in the oral arguments would be if it was an environmental action group [let's suppose non-extremist] that was worried about climate-change deniers hijacking their program.
posted by Lemurrhea at 6:03 PM on April 19, 2010

Say "there is a small Muslim group; it has 10 students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say First Amendment allows that?" Alito said.

Garre said that has never happened to a group.

This is such a crappy argument, I can't believe Alito actually asked it. So you have 50 people come and take over your club because they hate you-- why would you stay in that club? Why not form another club (The True Muslim Club.) Also, What would drive 50 students to join a specific group established by people they hate? Maliciousness? This is such an over-the-top hypothetical question, he might as well have asked, "What if it was scientifically proven that contact with gays is harmful to Christians?"
posted by Secret Life of Gravy at 6:45 PM on April 19, 2010 [4 favorites]

> What would drive 50 students to join a specific group established by people they hate?

Interesting note: Outlaw, a student group that promotes rights for gays, lesbians, bisexuals, and transgendered people, intervened in the case. Outlaw was able to become a party to the case because it has some interest in the outcome. I am not saying that Outlaw hates CLS (or vice versa), but it is reasonable to infer from the intervention that some Outlaw members want to join CLS.

Imagine how difficult it could be to set up an Outlaw chapter in, say, the deep south, especially if you can't require your members be sympathetic with GLBT rights.

Outlaw's intervention makes sense, but probably not the best strategic decision. That is probably why Alito asked the question.

> Hastings isn't saying (as far as I can tell) "You must believe/admit/do [thing we tell you to]"; they're saying "If you want school money and access to school facilities, here are some conditions you must meet."

Basically, the argument is that without Hastings' recognition, these students cannot associate. Sure, they could "unofficially" meet in the cafe or someplace off campus, but that would essentially make them non-existent to the other students on campus.

You might find this argument by David French helpful:

First, let's not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is "peculiarly a marketplace of ideas" that if closed will cause our culture to "stagnate and die." In fact, it's hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups' access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion "gag-rule") is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

And Eugene Volokh responds.
posted by stop sign at 7:10 PM on April 19, 2010 [1 favorite]

Sure, they could "unofficially" meet in the cafe or someplace off campus, but that would essentially make them non-existent to the other students on campus.

See, I don't buy this. (And I understand that this is not necessarily an argument you yourself are making; I'm arguing with the argument.) I know that anecdata is not data, but I was a member of a bunch of not-officially-recognized by my college groups, and we really never had any trouble getting and keeping members. We might not have been allowed to post flyers on bulletin boards (I really don't remember anymore, but I do know that local businesses and such would post ads for sales on college bulletin boards), but we were able to talk to other students, and tell them about meetings and parties and whatnot. We certainly weren't invisible.
posted by rtha at 7:18 PM on April 19, 2010

the argument is that without Hastings' recognition, these students cannot associate.

And it's a bad argument. The act of associating - that is, meeting with other people - is what's protected by a right of free association. This act is in no way disabled by refusal of the university to grant any group of people official standing as a university-sponsored student organization.

Sure, they could "unofficially" meet in the cafe or someplace off campus, but that would essentially make them non-existent to the other students on campus.

Lack of university funding might make it more difficult for these people to publicize their meetings and whatnot than it would be for official student organizations to do the same thing. But I think saying that this makes them "invisible" or in some way threatens their freedom to associate is drawing a very long bow indeed.

It seems to me that making university funding available only to groups that could potentially include any student of the university who wants to join is a fair and reasonable policy, and I see no reason at all why it ought to be varied to suit this bunch of special snowflakes.

I would argue equally strongly against funding a student Mensa group, for exactly the same reason. University chess club? Can't play chess? Come, join, learn. I'd fund that. University high IQ club? Can't pass this test? Piss off then. I wouldn't fund that.
posted by flabdablet at 8:38 PM on April 19, 2010 [2 favorites]

It seems to me that making university funding available only to groups that could potentially include any student of the university who wants to join is a fair and reasonable policy, and I see no reason at all why it ought to be varied to suit this bunch of special snowflakes.

I strongly agree with you when it comes to this specific situation. I'm less sanguine about a women's safety advocacy group having a bunch of guys wanting to join wearing T-shirts that say "Free [Sports figure convicted of rape this year]", and “It’s not rape if you yell surprise!”.

What would drive 50 students to join a specific group established by people they hate? Maliciousness?

Is that so surprising an idea? Wasn't there a thread just a few days ago about infiltrating the tea party? These clubs have resources, and membership lists (possibly with addresses). If I was in charge of any kind of college club I'd be trying to put rules in place now that ensured that you had to be a member in good standing (attend last nine meetings or something) in order to vote for officers or qualify to be an officer. I'd also be thinking about how to move financial resources from club to club if a hostile takeover was attempted, and/or requesting donors donate on a month to month basis instead of lump sums or endowments.

More to the point, it's the job of the Supreme Court to think about the side effects and weird ways that their rulings can impact things. Either so that they can rule more narrowly, or so that they can weigh how their ruling would affect organizations that are a lot more objectionable than this one. Otherwise and over broad ruling, and boom the KKK has a club on your campus (that admits black members).
posted by BrotherCaine at 9:15 PM on April 19, 2010

This is such a crappy argument, I can't believe Alito actually asked it. So you have 50 people come and take over your club because they hate you-- why would you stay in that club? Why not form another club (The True Muslim Club.) Also, What would drive 50 students to join a specific group established by people they hate? Maliciousness?

Loath though I am to defend anything that Alito says, have you ever met a student politician, and discussed other student politicians with them? In my experience, maliciousness falls a bit short.

Constitutional takeover (the little sibling of branch stacking) is a fact of life in Australian student politics. Student political clubs have complicated constitutions and voting rules to ensure that their club (and associated assets, mailing lists, etc.) isn't seized in an electoral coup. Things like the The Menzies Lecture are set up as separate trusts to prevent students from getting their grubby fingers on them.
posted by zamboni at 5:48 AM on April 20, 2010 [1 favorite]

Oh, and ignore my comment about Alito - I was thinking of Scalia. Time for more coffee!
posted by zamboni at 5:53 AM on April 20, 2010

This is an unbelievably hard case

I'm with Dahlia on that one.
posted by mediareport at 5:53 AM on April 20, 2010

See, I don't buy this. (And I understand that this is not necessarily an argument you yourself are making; I'm arguing with the argument.) I know that anecdata is not data, but I was a member of a bunch of not-officially-recognized by my college groups, and we really never had any trouble getting and keeping members. We might not have been allowed to post flyers on bulletin boards (I really don't remember anymore, but I do know that local businesses and such would post ads for sales on college bulletin boards), but we were able to talk to other students, and tell them about meetings and parties and whatnot. We certainly weren't invisible.

Having experienced the terror of the University of California bureaucracy, I'm going to go on a limb and say that this varies heavily from one school to another. At Davis it is nigh-impossible to reserve space on campus or do really much of anything without registering your group with the notoriously terrible SPAC (Student Programs and Activities Council, or something like that). They give you some quantity of funding and moderated access to University facilities and in exchange load you down with so many rules and regulations that you'd kill your own mother to escape them.

I was a minister in an anarchist-lite bike collective at a cooperative on campus for some years before it got officially 'noticed' by the University, which led to a long and bitter series of conflicts, culminating with the organization moving off campus. They're absolutely doing much better now that they've left the Uni, but that's another story...
posted by kaibutsu at 6:07 AM on April 20, 2010 [1 favorite]

Some of these Christians out there must own a different Bible than I do. In their version, does Thomas get kicked out of the locked room because he doesn't believe Jesus has risen?
posted by yeti at 7:34 AM on April 20, 2010 [2 favorites]

I'm guessing campus Bible study doesn't usually end with Jesus showing up and inviting the atheists to poke their fingers through the hole in his side.
posted by EarBucket at 7:44 AM on April 20, 2010

Secret Life of Gravy: that sounds like the sorts of thing that has happened to women's studies classes, with people (usually men) signing up for the class simply to make trouble. So, unlikely but not particularly implausible.
posted by rmd1023 at 8:00 AM on April 20, 2010

I could have sworn that I had read an article about how a gay rights group in Singapore had been infiltrated by anti-gay rights people, and thereby the group was neutered.
posted by Sticherbeast at 9:46 AM on April 20, 2010

Sticherbeast: Was it AWARE? 1, 2.
posted by zamboni at 10:12 AM on April 20, 2010

So what McConnell is saying is that a group that believes that African Americans are inferior should be allowed to get funding as long as they'd be willing to admit an African American who thought that African Americans were inferior?!?

The notion doesn't have to be rational, it just has to be consistent within its irrational little world.

I mean, "that's just your interpretation" about how the group specifically wants to exclude gays and lesbians? It's in their charter/"statement of faith", ffs.

In other words, bigots on SCOTUS make exceptions for other bigots. News at 11.
posted by Blazecock Pileon at 10:17 AM on April 20, 2010

rmd1023: "Secret Life of Gravy: that sounds like the sorts of thing that has happened to women's studies classes, with people (usually men) signing up for the class simply to make trouble. So, unlikely but not particularly implausible."

Far more annoying were the straight white guys in dreadlocks who took Women's Studies classes so they could lecture the class on how incredibly feminist and cool and fuckable they were.

I find it interesting that the CLS local group changed their rules to excluded non-Christians and gays *after* the national group told them they had to. This isn't just about public funding of discrimination, this is also about outsiders telling campus groups what to do.

In other words, CLS was astroturfed.
posted by QIbHom at 10:21 AM on April 20, 2010 [1 favorite]

Another question that demonstrates that IANAL: Would this be an issue at a private school? Like, if Stanford said the same thing Hastings is saying about what rules need to be followed in order for a group to get official recognition, would CLS have a legal leg to stand on?
posted by rtha at 11:10 AM on April 20, 2010

I've always thought that the Supreme Court should have 10 justices, and when there was a 5-5 split , there would be a deathmatch between one of each of the opposing sides to determine the verdict. This would also ensure a higher frequency of justice rotation.

Bailiff: All rise for the Supreme Court, the honorable Dwayne Johnston presiding.
Chief Justice: Can you comprehend what The Rock is adjudicating?
posted by zamboni at 12:39 PM on April 20, 2010 [1 favorite]

Is there a record of how "cemented" along party lines the SCOTUS has been in the past? Because it seems like the SCOTUS is more politicized now, but I may just have a poor sense of the history of the court.
posted by BrotherCaine at 12:40 PM on April 20, 2010

To crib Mr. Volkh's comment "But I think the Constitution, properly interpreted, should allow the government to impose nondiscrimination rules as conditions on group access to funding, or to university classrooms — even when that ends up disproportionately burdening religious groups. "

The constitution is meant to be a restraint upon government. Or, at least, the bill of rights is meant that way. This is what the government can't do: yadda, yadda, yadda. So that means that government cannot support organizations that have religious requirements. The constitution FORCES the government to impose nondiscrimination/nonreligious policies onto organizations that suckle at the public teat.

If any of the SCOTUS members get fooled into believing this is a freedom of association case, they ought to rend their robes and get real jobs.

rtha- if the organization doesn't use public money, then they aren't restrained by any of the constitutional restraints placed on government. They must still abide by any other laws that apply to anyone else.

brothercaine- I don't think they are quite so cemented as they seem, the middle "votes" often change places. And there is a dynamic to the SCOTUS that even if they all agree with something, someone will dissent just to get the other side's views on record.
posted by gjc at 7:27 PM on April 20, 2010

rtha- if the organization doesn't use public money, then they aren't restrained by any of the constitutional restraints placed on government. They must still abide by any other laws that apply to anyone else.

Okay, yeah. That's what I thought - but then I worried I was overlooking some obvious (or not obvious) legal thing. Thanks.
posted by rtha at 7:47 PM on April 20, 2010

Far more annoying were the straight white guys in dreadlocks who took Women's Studies classes so they could lecture the class on how incredibly feminist and cool and fuckable they were.

Yeah, that's pretty annoying in MetaFilter, too.
posted by Crabby Appleton at 7:53 PM on April 20, 2010