June 28, 2010
Patheos Interviews on Christian Legal Society v. Martinez
Patheos posted a set of brief interviews with Michael McConnell, counsel for the Christian Legal Society, David French, senior legal counsel for Alliance Defense Fund, and Marci Hamilton, con law prof at Cardozo, on the meaning of the Court's decision in Christian Legal Society v. Martinez and the case's future--a short, nice overview of the positions. We posted our analysis of the case here.
From McConnell's interview:
Q: What's next then for the Christian Legal Society and the Alliance Defense Fund? This gets remanded, and you will build a case that this was discriminatory in its application? That only the Christian Legal Society, and not other groups that discriminate in their membership, were singled out?
A: Yes. And I think the record is pretty clear that it was applied in a discriminatory manner. Justice Alito's dissent recites a lot of the evidence.
Q: Why was that not decided in this case? Was it because you wanted to focus on the facial challenge by arguing that this was unconstitutional even in the abstract?
A: I'm not quite sure why the courts did not look at it. We have argued it all along. . . .
I don't want to exaggerate this. The majority opinion does reject one of our arguments, which is that the "all comers" policy, even if it were applied on a non-discriminatory basis, is unreasonable in light of the purpose of the forum. . . .
Q: Now, legally, there is nothing to prevent other universities from deciding to use an "all comers" policy as a way of manipulating religious groups, including and excluding those they wish to include and exclude?
A: It may be harder than they think. When you get around to trying to write down what an "all comers" policy would really look like, it's a fairly daunting task. . . .
[P]racticalities make a blanket "all comers" policy absurd. So they are going to have to have exceptions. Once you get around to writing the exceptions, it's going to be pretty difficult for law schools to come up with an "all comers" policy that really does what they would like it to do.
From French's interview:
Q: What is to prevent other schools, colleges, and universities from adopting the "all comers" policy, and using that as a way to defund and delegitimize student groups who require their members to adhere to their values and beliefs?
A: There are really practical considerations. Under the Supreme Court's ruling, an "all comers" policy is only going to be constitutional if it applies to everyone equally. . . .
One of the reasons why the enforcement of the classical non-discrimination policy against student groups caused so few waves on campus is that they were able to use that classic non-discrimination policy to single out religious student groups without touching others. In the "all comers" regime, they have to impact all groups. That's a much more difficult thing to do in the real world than simply single out a disfavored Christian student organization and shove them out the door.
And from Hamilton's interview:
Q: The argument that this puts some religious student groups, groups that have a viewpoint that the university hierarchy does not prefer, at a competitive disadvantage in the religious marketplace of ideas--you do not find that a compelling argument?
A: Not at all. They have every opportunity to get their ideas out there. . . .
What they were looking for was an advantage. What they were hoping to do was to be given the ability to discriminate on the basis of sexual orientation with respect to their leadership and still take government money.
One thing that should be made clear in all the reporting on this case is that this was a case about funding. It was not a case of whether or not you could believe what you want to believe. Luckily, the Court said there is no constitutional right to funding when you are a group that chooses to discriminate on the basis of a category that it is illegal to discriminate against.
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