Friday, April 07, 2017

From the Archives: Will the U.S. Supreme Court uphold freedom of expressive association?

Publisher's note: This article was originally published on on April 7, 2010. The publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to since April 6, 2010. It is reposted here without most of the internal links that were in the original.

This was my second article published on Eventually I wrote about 500 articles that appeared on the now defunct news site over the six years between April 2010 and June 2016.

Will the U.S. Supreme Court uphold freedom of expressive association?
April 7, 2010 3:22 AM MST

On April 19, the U.S. Supreme Court will hear oral arguments in the case of Christian Legal Society v. Martinez. At issue is whether the University of California’s Hastings School of Law can force a student organization (the Christian Legal Society, or CLS) to accept members who do not share its core values. Supreme Court GLIL Rick Sincere
The case resulted from the CLS’s preference to reserve membership to evangelical Christians who sign a statement affirming their religious and moral code, which includes a belief that sex outside of marriage is sinful and that homosexuality is also wrong.

Gay and lesbian students at Hastings objected to the CLS membership requirements, arguing that they were being excluded on the basis of their sexual orientation.

Adam Kissel Speaks at UVa
Last week at the University of Virginia in Charlottesville, Students for Individual Liberty and the Liberty Coalition jointly hosted a presentation by Adam Kissel of the Foundation for Individual Rights in Education (FIRE), a Philadelphia-based group that defends the First Amendment rights to freedom of speech, of the press, and of association on college campuses across the United States.

Kissel was asked about the CLS case. (See the accompanying video, below, for his full response.)

The rules at the Hastings School of Law, Kissel explained, say that “every student organization has to accept all comers … even if you completely disagree with the mission, even if you are joining it simply in order to thwart what it does and vote against all its policies … and vote in all your friends as leaders, it doesn’t matter.”

This has ramifications even for political organizations, he said, noting that the president of the college Democrats received a letter that said “she had to let anybody into her group, including campus Republicans, to be a voting member or a leader of her group, and she couldn’t have in her constitution” a provision saying that “only Democrats can be campus Democrats.”

Turning to the UVa students in the audience, Kissel said: “That sounds pretty ludicrous to you, I hope.”

Who Complained?
Kissel explained that the gay and lesbian group at Hastings, called “Outlaw,” filed a complaint against CLS, “saying ‘this group is discriminating against us’ and that kind of makes sense from a discrimination point of view. Only people who believe in discriminatory policy are allowed to be voting members. Not only that, there’s a whole category of people who are very, very unlikely to be self-hating so that, even though you’re saying it’s a matter of belief, it’s kind of also a matter of status."

Kissel illustriated his point by suggesting a fictional “Anti-Semitic Appreciation Society [that], if you’re Jewish, you’re very unlikely to be anti-semitic, so you’re kind of automatically excluded.”

The Ninth Circuit Court of Appeals accepted the argument of Outlaw and the Hastings administration and ruled that CLS had to accept gay and lesbian members, even if those people do not share the core values of CLS.

How did this get to the U.S. Supreme Court? Kissel explained that “the Seventh Circuit disagrees. Fourteen Attorneys General, including the Attorney General of Virginia, disagree.”

The Supreme Court took the case because there is divided opinion at lower judicial levels. What’s more, both sides can make a compelling case.

“So you have a very strong First Amendment group on one side,” Kissel said, “and you have a very strong anti-discrimination group on the other side. Both sides have reasonable arguments.”

The FIRE has submitted a friend-of-the-court brief in CLS v. Martinez, because the organization foresees broad and deep ramifications if the Supreme Court rules against CLS.

What Is at Stake?
“My feeling is,” said Kissel, “if the Supreme Court lets this rule through, it’s going to apply not just to universities having what I call ‘unconstitutional conditions’ (which is what the Attorneys General call it), but it means any city or state could have a non-discrimination rule that applies to every fraternal organization, every organization in the country. Basically, your First Amendment right to freedom of expressive association is thrown out the window.”

He went on to say that if CLS does not prevail, it “means that any other ‘content-neutral’ rule is going to also be accepted, if it’s furthering some kind of government interest. Government has lots of interests. So I’m pretty hopeful that the Supreme Court is going to do the right thing on this one.”

Further reading:

Amicus curiae brief of the Foundation for Individual Rights in Education
Amicus curiae brief of the Charlottesville-based Rutherford Institute
Amicus curiae brief of the libertarian think tank, the Cato Institute
Amicus curiae brief of Gays and Lesbians for Individual Liberty (GLIL)
Amicus curiae brief of 14 state attorneys general (including Virginia’s)

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