I just got off the phone with David French, senior legal counsel for the Alliance Defense Fund. A more thorough rendering of the conversation will be available soon, but for now, here is a rough and ready transcription of one part I found especially interesting:
“In many ways I see this case as the fruit of the poisonous tree of a previous bad Supreme Court decision. That previous bad Supreme Court decision is the Board of Regents of the University of Wisconsin Sysm v. Southworth. In that case the Supreme Court ruled that they can force students to pay money into a pool that is then used to fund student organizations that other students abhor. In other words, you are forced to fund speech that you abhor.
“Typically, outside of the campus, you cannot do that. It would be considered forced speech, a violation of your rights of conscience. But in the Southworth case, the Supreme Court said, in a university environment….we’re going to allow the university to require students to pay for all kinds of student organizations. So they are forced to fund even the student groups they find abhorrent.
“In Ginsberg’s opinion, she says, under the all-comers policy, no student can be excluded from a group they are forced to fund. So you see the direct line of thinking…You take a bad decision, that students may be forced to fund groups that they find abhorrent…and you conclude that no student should be excluded from a group the student is forced to fund. What you’ve done is in essence you have plucked the fruit of the poisonous tree here.
“Underlying a lot of the court’s decision was this mindfulness of the Southworth regime that they created where they forced students to fund expression. They viewed it through that prism. It obviously impacted the court. In fact, it’s one of the first things mentioned as a justification for the decision.”