Monday, July 26, 2010
In a post on today's Opinionator (the Online Commentary from the New York Times), Professor Stanley Fish returns to a discussion of Christian Legal Society v. Martinez, 561 U.S. ____ (2010), in which the Supreme Court upheld Hastings Law School's right to withhold official recognition from a Christian group that restricted its membership to co-believers who not only talked the talk but walked the walk as far as Christianity was concerned. Professor Fish addressed the issue in his post last week, arguing that "[u]nder cover of 'neutrality,' Hastings, with the [Supreme Court] majority’s approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community."
This week, he states in part:
Lurking in the background of . . . cases [like C.L.S. v. Martinez] is the question of exactly what a religion is. The courts do not confront that question directly — how could they? what would be their expertise? — but when even-handed treatment becomes the rule in aid and burdens on free exercise must be tolerated if imposing them was not the law’s affirmative intention, an answer has implicitly been given: religion is just another discourse, no different than any other. That is to say, religion is not special; it is not special in the negative sense implied by the establishment clause, which by its very existence announces, “watch out, this stuff is trouble”; and it is not special in the positive sense declared by the free exercise clause, which seems to announce, “this is something the state must protect.” The evisceration of the establishment clause gets religion in the door but at the expense of its unique status; the neutering or “neutraling” of the free exercise clause completes the denial to religion of the label “special.”
In the final analysis, Professor Fish presents what he sees as the current dilemma:
Religious organizations face a choice between altering their core beliefs or forfeiting privileges enjoyed by others. The liberal state and its institutions face a choice between being faithful to the democratic principle of open access or closing the liberal door to those who are illiberal.
The dilemma is sharpened and even rendered poignant by the fact that liberalism very much wants to believe that it is being fair to religion, but what it calls fairness amounts to cutting religion down to liberal size. That is what the majority in Christian Legal Society v. Martinez does when it invokes the limited forum doctrine, which, according to a line of cases, should have protected C.L.S.’s expressive rights of association, but does not because expressive association is declared to be trumped by the value of non-discrimination.
Professor Fish's pieces on the case make interesting reading. I highly recommend them.