Phi Beta Cons

The Right take on higher education.

Who is Defending Liberty?


One of the more irritating assumptions in modern cultural/political life is the common theme one encounters on campus (and elsewhere) that the cultural Right restricts liberty while the Left defends it. And no one (allegedly) restricts liberty more than those tyrannical members of the “Religious Right,” with their repressive moral code and puritanical sensibilities.

If this is the case, then why is it — as a card-carrying member of the “Religious Right” — I have never in my career been involved in a case that limited or constricted pre-existing legal rights? Why is it that every successful case has resulted in greater liberty, not just for my clients but for the entire campus community?

For example, when a speech code falls — regardless of whether that case was brought on behalf of a conservative — every person on campus enjoys greater free-speech rights. When a court protects a professor’s in-class speech, all professors enjoy greater liberty. Whether the issue is speech zones, student fees, or student free association, again and again, conservative Christians find themselves on the side of liberty. Yet the “repressive” stigma still exists. Why?

Perhaps the answer is found in a case like Christian Legal Society v. Martinez, where Christian conservatives are defending a traditionally recognized right (the right to expressive assocation) against a culturally and politically driven demand (a demand that religious student groups be open to anyone who wants to join). The Left is trying to create a right that destroys a right. As of now, there is simply no widely recognized right of private citizens to join any private expressive association they want to join — regardless of their belief or conduct. In fact, even in the campus environment, only the courts of the Ninth Circuit have forcibly opened private associations to non-adherents.

In large part, the culture war — despite its heated rhetoric — has been fought within certain bounds. The two side square off from within their perspective camps and then attempt to influence the electorate (and elected officials) using their rhetoric, their votes, and their resources. Yet Martinez threatens to disrupt this balance and take the culture war to a new level of intensity and intrusiveness. In ADF’s Academic Freedom File, Jordan Lorence explains:

Under a proper understanding  of the First Amendment, this case is most emphatically not  a clash between religious freedom and rights pertaining to sexual orientation.  Religious groups and gay rights groups share common ground in the need for freedom of association.  Both are vulnerable (in different parts of the country) to the hostile reactions of university administrators and fellow students.  Both can pursue their objectives best if free to decide for themselves who will lead and speak for them.

On the other hand, if Respondents [UC-Hasings Law School] were to prevail in this case, it would provoke a collusion between religious freedom and rights of sexual orientation.  That would mean, in essence, that when sexual orientation is added to the list of forbidden grounds under non-discrimination laws, religious and other groups that adhere to traditional moral views could be driven from the public square in the name of enforcing non-discrimination.  This would raise the stakes in the political battles over sexual orientation discrimination to a dangerous extent.  It would be far better to adhere to the framers’ wisdom of “live and let live” under the First Amendment than to treat religious and sexual orientation discrimination laws as a rationale for ostracizing dissenters. 

Only by defending free association can the Supreme Court truly defend liberty in this case. Any other ruling risks placing private associations under the thumb of majoritarian sentiment.


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