Ten years ago, the Supreme Court created a national furor in “Boy Scouts of America vs. James Dale” when it reversed a N.J.Supreme Court decision that ordered the Boy Scouts to reinstate an openly gay adult rejected as an assistant scoutmaster.
At stake, despite this act of discrimination, ruled the U.S. Supreme Court, was the First Amendment’s right of “free expressive association.”
To make freedom of speech, press and religion work, Americans have the right to freely associate to amplify their individual voices.
This right is “crucial” in preventing the majority from imposing its views on groups with unpopular views, said the court in reversing the New Jersey ruling.
Despite that decision from the nation’s highest court, the Boy Scouts have been punished around the country for maintaining their unpopular criteria for membership. They have been denied access, for example, to certain public spaces.
Many Americans are so strongly opposed to discrimination (as am I) that they make ending it an unbending priority, even when it comes to First Amendment freedom of association.
In June of this year, a fierce battle erupted again over the right of organizations to control the selection of their members. The present Supreme Court ruled, 5-to-4, in Christian Legal Society v. Martinez, that the public Hastings College of Law in San Francisco has not violated the First Amendment by denying recognition to a student Christian group that denies membership to gays. (The group also requires its voting members and leadership to sign a “statement of faith” in their Christian beliefs and values.)
Hastings College of Law insists that every student organization be open to “all comers.” Refusing recognition to this selective Christian organization means that it is barred from meetings spaces, funding and communications channels. The Christian Legal Society may still exist on campus, but as somewhat of a pariah organization.
Justice Ruth Bader Ginsburg, extolling diversity, wrote the majority ruling against the Christian legal group. The court’s liberal wing joined her in declaring that there is no First Amendment problem with this law school requiring student groups to accept all comers.
Writing for the dissenters, Justice Alito charged that the majority had thereby decided that there is “no freedom for expression that offends prevailing standards of political correctness in our country’s institutional of higher learning.”
There are, he observed, “religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith.”
He added that the court’s ruling had given universities “a handy weapon for suppressing the speech of unpopular groups.”
Did the American Civil Liberties Union rushed to the defense of the First Amendment in this case? No.
The triumphant legal director of the ACLU, Steven Shapiro, crowed in a leading law journal: “Today’s ruling sends a message that public universities need not lend their name and support to groups that discriminate. A public university has the right to enact policies that refuse to officially recognize and fund groups that deliberately exclude other members of the student body.”
Thus, the (still indispensable) ACLU favors the suspension of a crucial component of the First Amendment!
But the Foundation for Individual Rights in Education (on whose advisory board I serve) said: “This is a loss for diversity and pluralism on campus, not a win.”
College atheists have a right to be atheists, and college Christians have a right to be Christians, said the organization.
James Madison insisted on the separation of church and state but excluded no one from the First Amendment. He, I believe, would rebuke the ACLU and the liberal wing of the Supreme Court for their embrace of political correctness at the expense of the First Amendment.