The End to Freedom of Association?

CT Direct has published an article entitled The End of Religious Freedom concerning the case of Christian Legal Society v. Leo Martinez presently pending in the United States Supreme Court. The case concerns the refusal of Hastings College of Law to grant recognition to the local chapter of the Christian Legal Society (CLS) as an active organization on the grounds of Hastings Law School. The denial of recognition keeps the local chapter of the CLS from receiving any funding through the law school or from using its facilities.

Why would this notoriously liberal law school located in ultra-liberal San Francisco take this action? Of course, it has to do with the belief widely held among liberals that Christianity is bigoted for taking a stand based on moral principles (specifically, Biblical principles) against homosexual marriage. As described in Religion and Ethics Newsweekly's news article on the case (hereinafter, the R&E Newsletter):

The chapter at Hastings opens its meetings to all students, but members are asked to sign the Christian Legal Society statement of faith: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit.” If you don’t sign the statement of faith, you cannot vote or hold office.

Members must also accept the society’s sexual morality standards, which state that any “sexually immoral lifestyle” is grounds for disqualification, including “all acts of sexual conduct outside of God’s design for marriage between one man and one woman.” That was enough for Dean Martinez to deny the Christian Legal Society official law school recognition.

The position adopted by the school is pretty straight-forward: as a public institution, the school cannot abide any group that it views as engaging in discrimination to receive support from the school in the form of recognition. As Dean Martinez says in the R&E Newsletter:

We are a public institution. When we admit students, we tell them we will admit you regardless of your beliefs, regardless of your race, regardless of whether you’re striped or not, and I think part of our promise when they come here is that they are allowed to share in the full educational experience of Hastings, and I think it’s a terrible thing that we would have to do to say, “Yes, we will admit you. Oh, but by the way there are certain groups where you’re not welcome.” And to the extent we’re a public institution and we’re using public money to fund our student groups, I think we simply can’t do that.

Of course, we can all relate to the concerns of Hastings. If you allow discriminatory groups onto campus, then what's to stop the Ku Klux Klan from forming a group that excludes blacks? But there's a problem with Hastings' position in that if carried to its logical extreme it will lead to the end of the Freedom of Association. A nice summary of the Freedom of Association (a right found in the Bill of Rights) is found in which describes the Freedom of Association as:

The freedom of individuals to associate as an end in itself or with a view to pursuing common projects, e.g. through churches, trade unions, political parties, and sporting clubs. Freedom of association is widely seen by liberal political philosophers as a core personal liberty, warranting strict protection by the state, though the exact contours of the freedom, and how it is appropriately balanced against other values, are a matter of considerable and continuing dispute.

The CT Article that I began with points out that if Hastings' ban of the CLS is upheld then the only way that the CLS can stay on campus is to open up its membership to people who disagree with their Biblically-inspired position on homosexual marriage. That would destroy the CLS group as a group that is devoted to particular principles. The CT Article notes Hastings position, and in doing so makes it clear how this would be true:

The school said student group leadership positions must be open to all students—even to those who would seek such positions precisely in order to destroy the purpose of the group.

In other words, if the CLS Hastings Chapter has to allow anyone to join their group, even people who do not agree with the CLS position on homosexual marriage, then any number of gay activists (or simply pro-homosexual marriage students at Hastings) could join the group not for the purpose of being members of the CLS, but to subvert its purpose. This would destroy the Freedom of Association guaranteed by the First Amendment.

And it is not only the CLS or other Christian groups whose core freedom of association is put at risk: everyone's freedom of association is put at risk. A homosexual rights groups on campus could find its purpose subverted by a group of people who oppose gay marriage taking over the group and subverting its purpose.

Am I dreaming? Am I thinking of nightmare scenarios that are out of the question? Not according to Dean Martinez who makes a rather revealing exchange in the R&S newsletter:

O’BRIEN: Would a student chapter of, say, B’nai B’rith, a Jewish Anti-Defamation League, have to admit Muslims?

MARTINEZ: The short answer is yes.

O’BRIEN: A black group would have to admit white supremacists?

MARTINEZ: It would.

O’BRIEN: Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?


O’BRIEN: You can see where that might cause some consternation?

MARTINEZ: Well, there’s a Spanish saying to the effect that “the thinnest of tortillas still has two sides,” and the other side of that is that with any other regime we would be forced, using public money, to subsidize the discriminatory practices of a particular group.

Thankfully, the present state of the law is against Hastings. As accurately noted (for a change) in Wikipedia:

[I]n Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.

I expect that Hasting will (thankfully) lose this case. And thank God that it will. The larger issue of Freedom of Association is much too important to be sacrificed in the name of Hastings' short-sighted, anti-Christian position.


Brap Gronk said…
Does Freedom of Association require public funding to be made available to any group (discriminatory or not) that wants to assemble? I think it might require that public funding be made available to defend their right to assemble, such as police protection during a KKK parade, but I don't think "the public" is required to give a discriminatory group free use of a public building for their assembly.
Jason Pratt said…
I tend to agree. Hastings also has a right to decide which groups, on the basis of its charter and the best judgment of its executive officers, will be directly supported by the school.

As a public institution, though, I suppose they could be vetoed by the executive decision of whichever Californian state department was in charge of its charter. Otherwise, it seems the proper thing for the suborganization to do is to respect the rights and wishes of the larger organization and not demand direct support from them.

On the other hand, it may be illegal for public institutions to deny direct support to groups comprised of their own members, even when such groups would otherwise violate the letter and/or the spirit of the charter of the public institution, so long as the sub-group was not engaged in illegal activities themselves.

On yet another hand, it does seem like Martinez has conceptually stepped over the line if he was willing to insist that groups allow people into their membership who would intentionally subvert the goals and principles of that group. Is he really willing to shut down direct support of various minority organizations if they refuse to let obvious trolls be members? Are there student chapters of, say, the Rainbow Coalition on his campus who are aware of, and okay with the idea, that if they don't let in actively dissenting people as members, then he'll shut them off from direct support?

Anyway, the legal principle here doesn't seem to be right of free association, but right to direct support from public institutions with specific charters of their own, where the charters of the two groups conflict. Martinez isn't saying that the group cannot associate on his campus, or even (yet) that he wouldn't take their money to rent out meeting space, only that the university organization won't provide direct support for it.


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