Freedom to discriminate

Freedom to discriminate
By Christopher Caldwell
Copyright The Financial Times Limited 2010
Published: April 23 2010 20:30 | Last updated: April 23 2010 20:30
http://www.ft.com/cms/s/0/dfff4764-4f03-11df-b8f4-00144feab49a.html


It is a bad sign when a court case that seems likely to set precedent is based on a bizarre controversy. This week, the Supreme Court heard oral arguments in Christian Legal Society v Martinez, which revolves around the question of whether a Christian group violates anti-discrimination law if it insists that its leaders be Christians (as it understands the term). The case has generated 40 friend-of-the-court briefs, a sure sign of brewing political controversy. There has always been a contradiction at the heart of anti-discrimination statutes. The rights they confer are bought at the cost of other people’s right of freedom of association. As the US emerged from racial segregation, it considered that cost worth paying. But as more groups claim anti-discrimination protection, the right of freedom of association gets narrower. Anti-discrimination law can become a tool for protecting powerful elites, not endangered minorities.

An evangelical group called the Christian Legal Society has long existed at Hastings College of Law in San Francisco, the oldest law school in the western US. Anyone can attend the group’s meetings. But since 2004, the CLS has been part of a national organisation of the same name that requires a statement of faith from officers and those who lead Bible studies. They must profess belief in the virgin birth and in the Bible as the word of God. More controversially, the group believes that, “in view of the clear dictates of scripture, unrepentant participation in and advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the statement of faith”. The group disapproves of extramarital sex of any kind, including homosexuality. Hastings, believing the group thereby runs afoul of its rules against discrimination by sexual orientation, withdrew recognition from it.

The university defends its conduct by saying that the group can do whatever it wants on its own time, but must abide by the school’s rules if it wants to claim the school’s resources and sponsorship. This seems to be common sense, but the court has a hair-trigger sensitivity to universities’ using neutral-seeming pretexts to stifle civil rights. A long line of case law protects unpopular minorities against being silenced by powerful majorities and university administrators. CLS relies on Healy v James, a 1972 case involving the expulsion of the Vietnam-era radical group SDS from a campus, and Gay & Lesbian Student Association v Gohn, a 1988 speech case involving a gay student group.

It is a curious case: Christians are taking on the mantle of a despised minority, while gay rights is the ideology of an entrenched institutional power. What this shift means is open to debate: is homosexuality gaining special protection as conduct that must be accepted, the beneficiary of a sort of post-modern blasphemy law? Or is the US simply moving towards a more “French” separation of church and state, whereby the expressive rights of religions take a back seat to secular groups’ expressive rights?

It weakens the law school’s case considerably that it has permitted other student groups to engage in discrimination at the same time it was disciplining CLS, and only CLS. Many other groups claim the right to limit their leadership to like-minded members. For example, the bylaws of the campus chapter of La Raza restricted voting membership to students “of Raza background”. (“Raza” is Spanish for race.) The university says the group has since amended its bylaws.

Another confusing aspect to the case is that the college has a second, unwritten, anti-discrimination policy in addition to the written one. According to this second policy, all organisations must admit “all comers”. The idea that every group must admit “all comers” was held up to ridicule by almost all Supreme Court justices on left and right. But one justice, Samuel Alito, raised a more serious objection. It subjects any small and unpopular group (consider a Muslim Students’ Association after September 11 2001, perhaps, or a gay group in a different era) to entryism: being joined by more numerous enemies who vote to disband it.

The disturbing thing about this case is that it shows the basis for neutral principles of anti-discrimination law to be eroding. In years past, when anti-discrimination clashed with freedom of association, its defenders took refuge in the concept of “diversity”. But this case shows how lame and arbitrary that rationale is. In another case against CLS litigated in Illinois, Diane Wood, considered a likely nominee to the Supreme Court, dissented from a decision that backed CLS’s right to be selective about its officers. “Given that universities have a compelling interest in obtaining diverse student bodies,” she wrote, “requiring a university to include exclusionary groups might undermine their ability to attain such diversity.”

This is poor reasoning. There are arguments in favour of diversity (varied viewpoints), and there are arguments in favour of uniformity (esprit de corps). But in the Hastings case and similar ones, there can be no doubt that it is the college taking the side of uniformity, and the CLS the side of diversity. Ms Wood is simply assigning the label of “diversity” to the side she thinks most virtuous. The administrators at Hastings, like Ms Wood, are frozen in time. For them, “minority” is not a descriptive noun. It is a government-conferred status, a guarantee of special protection that can be bestowed on the powerful as well as the downtrodden. No neutral principles here: just the interests of an “out” group that used to be an “in” group pitted against those of an “in” group that used to be an “out” group.

The writer is a senior editor at The Weekly Standard

More columns at www.ft.com/caldwell