I’ve thoroughly enjoyed exchanging posts with Eugene Volokh on Christian Legal Society v. Martinez, but I’m sure there’s a limit to reader interest. (In fact, I’m concerned that if I mention Healy one more time, readers may flee for the refuge of a celebrity news site and never come back.)
For now, though, I can’t resist. Eugene made a key point that I believe requires a response. But before I get to that, and for those scoring at home, here’s the sequence of posts thus far: My first Martinez post. Professor Volokh weighs in. I respond. The professor counterpunches. Circling the ring warily, I jab back. Undeterred, Eugene takes another swing.
His entire post is (of course) worth reading, but I want to focus my response on one item — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:
The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which … subsidizes … racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)
But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial discrimination. Of course, that doesn’t mean the individuals don’t get their feelings hurt when they’re excluded from organizations, but that doesn’t provide a pretext for state action.
One of my favorite examples of these kinds of real-world controversies is an old one from a private school, Central College in Iowa. There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case). The student was enraged when he was asked to step down, but — honestly — did he have a reasonable expectation that he should be permitted to lead? Is it invidious discrimination for a Christian student group to ask that its leaders be Christian?
As an aside, while the current debate is centered around the ability of groups to exclude based on sexual-conduct rules and beliefs regarding sexual conduct, not all religious disputes deal with sex. Under the Ninth Circuit’s ruling in Martinez, the university would find itself in the middle of discrimination complaints based on the finer points of theology, if — to take from a real-world example — a student group had a dispute over the doctrine of justification. Or what if a student group wanted to expel a malicious Fred Phelps-type pseudo-religious lunatic? Is it really the role of the university to step in and tell CLS that they have to keep such malignant individuals in their midst?
Even further, where is the state interest in forced inclusion when excluded individuals have the right to form competing student groups, seek student-fee funding, and gain access to facilities? In other words, they have the right to confront what they perceive to be bad speech with their own, better speech?
Regardless of the framework for deciding Martinez – whether it’s the Seventh Circuit’s Healy-based associational analysis, the Ninth Circuit’s forum analysis, or something else entirely — the question of state interest will come up. And at that point, CLS can rely not just on common sense, but on a long line of Supreme Court precedent acknowledging (and protecting) the right of private organizations to form around shared beliefs and to enforce rules that protect the integrity of their message.
The bottom line? There’s a qualitative legal and moral distinction between invidious racial discrimination and a religious group’s asking that its members share the groups’ religious beliefs. I believe (and hope) the Supreme Court will see (and recognize) that distinction.
Finally, let me just thank Eugene for taking the time to engage on this issue. When it comes to constitutional issues, I rarely disagree with Professor Volokh, but I must admit that a lively debate can sometimes be more fun than a never-ending series of “amens.”