Justice Alito, writing in dissent, gets it right: Today’s 5–4 decision in the Christian Legal Society case is a “serious setback for freedom of expression in this country.” It will be reported that the majority struck a blow for dialogue, diversity, universities’ autonomy, and increased opportunities for students, but you shouldn’t believe it. Instead, this decision ratifies discrimination by public officials toward groups that espouse traditional religious views and who believe that those views should matter when it comes to membership and leadership in the group. That Justice Kennedy, who regards himself — with some justification — as a freedom-of-speech hawk, went along with the majority’s unconvincing account of the “neutrality” of the school policy at issue is especially unfortunate.
At the end of the day, underneath the various and competing applications and interpretations of the Court’s expressive-association, viewpoint-discrimination, and limited-public-forum doctrines and cases, there is this: The justices in today’s majority do not understand that diversity and dialogue are not well served by indiscriminately imposing “non-discrimination” rules and expectations on civil-society groups that are formed around distinctive values, commitments, and messages. It is wrong — and public universities should not support this wrong — for a public law school’s chess club to discriminate on the basis of race; it is not wrong for the Christian (or Jewish or Muslim) Law Society to take into account the religious views of those who would be its members and leaders.