A Ruling That Could Unleash Anti-Free-Speech Efforts
By Timothy Dalrymple
We interviewed Michael McConnell in May, shortly after he had argued CLS v. Martinez before the Supreme Court. CLS v. Martinez considers a case in which a public law school denied official student group status to the Christian Legal Society because it required its voting membership to affirm a statement of faith -- a statement that says that sex should be reserved for a marriage between a man and a woman.
Throughout the litigation process, there was confusion over what exactly was the policy that the Christian Legal Society had offended. In the litigation process, Hastings clarified that they held to an "all comers" policy, in which all students should be permitted to become members in all student groups. Christian student groups could not, in other words, limit its membership only to Christians, or only to those who affirm the same creed.
The Supreme Court decided in favor of Hastings, and judged that the "all comers" policy is not an unconstitutional abridgement of the First Amendment. Refer to our interview with McConnell for more information, or to the rolling reports at the Cross and Culture blog.
Judge McConnell made himself available for a follow-up interview, in order to share his perspective on the ruling.
How do you interpret the impact of the ruling?
Essentially, the court declined to rule on most of our arguments, so the impact is that there will be a lot more litigation in the future. We certainly have not lost on the important questions in the case. The court declined to reach the written non-discrimination policy that says that religious organizations cannot discriminate on the basis of religion. They did not reach that at all. The four justices in dissent all said that this is plainly unconstitutional. One justice, Justice Stevens, now retiring, defended it. The others were silent on that. I expect that we will ultimately prevail. I wish that they had reached it in this case, but they did not.
Even the "all comers" policy was only upheld in the abstract. The court remanded on the question of whether the policy has in fact been non-discriminatory. I think the record pretty clearly shows that it has been discriminatory, that it's only been applied to the Christian Legal Society and not to other organizations that similarly restrict their membership and their leadership.
I expect that we will prevail. It's just going to be a lot longer slog than we had hoped it would be. And nationwide, a number of universities are going to look at this and see whether it's going to be a way to shut down organizations that they don't want to put up with. That means there will be litigation all over the country.
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?
Yes. And I think the record is pretty clear that it was applied in a discriminatory matter. Justice Alito's dissent recites a lot of the evidence.
Dr. Timothy Dalrymple is the Associate Director of Content at Patheos, and writes weekly on faith, politics, and culture for Patheos' Evangelical Portal. Follow him at his blog, Philosophical Fragments, on Facebook or on Twitter.