Hadley Arkes on the significance of yesterday’s Christian Legal Society ruling:

Over thirty years ago, in the famous Bakke case, Justice Lewis Powell held that schemes of racial preference could be constitutionally acceptable so long as colleges and universities did not focus exclusively on race as they gauged the worth of applicants. It was necessary, he said, to take race “into account” in connection with many other attributes that could make a student appealing to an office of admissions. The package of admirable traits should be “diverse,” and the aim, of course, was to produce an enrollment with a wholesome “diversity.”
Diversity then became the mantra, and as it has been played out with inventive variations while it reordered and reconfigured the academy. Now, with the decision on the Christian Legal Society, Justice Kennedy and his colleagues have put another powerful weapon in the hands of the people who rule the universities and colleges. We can expect to see, in the course of this next year, resolutions brought forth in faculty meetings to couple the standing policy on “non-discrimination” with this new policy of “all-comers”—since, as we shall hear, that policy has been sustained now by the Supreme Court.
The Court confirmed this novel policy, after all, for a public university, and if it can be installed there, it could be installed with far more freedom in a private college. But it is a policy that perfectly fits and amplifies the scheme of diversity. And once installed, that policy provides the lever for finally driving Christian groups from the life of the college. The scene is in place now to have gay activists seek to become officers in these groups, as they have at Tufts and other schools. Indeed, that has been the test of choice, used in challenging the Christian groups and bringing the complaints that threaten their standing in their colleges.
Ginsburg argued that there was little of practical consequence at stake here. The Christian Legal Society might be denied official standing and funds, but the members could still meet, whether in classrooms or perhaps in catacombs off the campus. They may not be listed on official websites and calendars, but hey, as Justice Ginsburg points out, the word is quickly put out these days on e-mails and other websites.
For Ginsburg it was an act of high presumption for the Christians, with such a sectarian character, claiming the funds that flow to other groups in a public university—groups that have not offended against the new morality by their refusal to purge themselves of moral judgments on the ways people engage in sex. But Ginsburg serenely misses the point: It is not about the money or the use of the bulletin boards and websites. It is about the willingness to withdraw, from Christian groups, their claim to stand as fully legitimate groups in the life of the college, as though there were something faintly noxious about them, something that bars them from the company of people who respect the claims of propriety and reason.
That is what Ruth Ginsburg delivered to the country this past Monday, with Anthony Kennedy standing once again as the fellow traveler or enabler. She delivered her judgment, and a summary of her opinion, in a brave act of doing her duty. Her husband, Martin, an accomplished lawyer and professor of law, died just the day before, this past Sunday.
She was there, in Court, to perform her duties in bringing the term to its end. It was a lovely act of duty honored, while thoroughly detached from the canons of moral judgment that lend, to duty, its moral substance.