Michael McConnell claims that "the right to speak on an equal basis on public property has never been understood to be a benefit or subsidy." And "if being able to participate on an equal basis with other groups in the common resources of civil life is a benefit or subsidy that the government controls in this way, then there is essentially no more separation between church and state. The government will be able to exercise a kind of power over religious organizations that it has never before exercised in America."
Third, this case seems to partake in the pervasive ambiguity in American public discourse over what we mean by discrimination. Is it always wrong to discriminate, or are some forms of differentiation necessary and morally acceptable? Is it discriminatory to insist that a Christian group be led by Christians, or a Jewish group by Jews? To quote McConnell again, "There is absolutely nothing invidious or immoral or improper or unneighborly or hostile or anything wrong whatsoever about religious organizations insisting that they be controlled by their own people...The state has zero legitimate interest in discouraging that. It's none of the state's business. That's what separation of church and state means."
What is important to recognize, moreover, is that these were not simply policies of the Christian Legal Society; they were significant religious beliefs. It is a part of the fabric of Christian belief that Christian groups formed for perpetuating the faith should be guided by Christians who meet certain biblical criteria. The epistles of Paul provide detailed guidance on the kinds of leaders Christians should seek for their faith communities, and most Christians also base their views on homosexuality on a theology of sexuality and marriage that comes out of Genesis and various passages scattered throughout the New Testament.
In other words, what Hastings is rejecting, in this case, is not simply a procedural policy in the CLS bylaws but a basic Christian belief. Justice Alito recognizes this point in the dissent (p. 36). "There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization." Whether or not one agrees with these beliefs, Christians should be allowed to hold to orthodox Christian beliefs without suffering a penalty at the hands of the state. Alito cites the Evangelical Theological Society to make the point that a decision in favor of Hastings "will allow every public college and university in the United States to exclude all evangelical Christian organizations."
Finally, the long-term consequences of the ruling largely depends on three questions:
First, how broadly will this ruling be interpreted and applied? Will universities and other organizations take note that the Supreme Court affirmed neither the written anti-discrimination policy nor the selective application of an all-comers policy, but the concept of a viewpoint-neutral all-comers policy within the university context? In other words, in the narrow construal, only univerisities could take guidance from the decision because of its overt references to the interest of higher education; and universities, in order to abide by the ruling, cannot de-recognize exclusionary Christian student organizations without also de-recognizing every other student organization that excludes students for any reason.
The battle over interpretation is apparent in two quotations. The first, from Michael McConnell, claims that the Supreme Court affirmed "an abstraction: a description in a deposition of a policy that has never been enforced in reality," and thus "not very much was really decided." Marci Hamilton states otherwise: the case means "that government can enforce an anti-discrimination rule," and therefore "every woman, every minority, homosexuals, everyone who is discriminated against, has a reason to celebrate."
It goes without saying that Hamilton's liberal philosophy is more pervasive in academic and government circles than McConnell's conservatism. If Hamilton's interpretation prevails, then unversities and potentially other organs of the state may conclude that they can withhold benefits and services from religious groups that "discriminate" in their criteria of membership and leadership.
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