Justice Anthony Kennedy, a relative moderate on the Supreme Court and a swing vote in many 5-4 decisions, was the only non-liberal Justice to join the majority opinion in Christian Legal Society v. Martinez. He was most likely the decisive vote in today's decision. He was the Justice to whom the parties and the other Justices likely were trying to appeal, and therefore his opinion arguably matters most. Justice Kennedy's brief concurrence illuminates why he ultimately decided that the First Amendment right to expressive association does not bar the University of California Hastings College of the Law from requiring student organizations to accept all comers as members.
In keeping with Justice Ruth Bader Ginsburg's majority opinion and Supreme Court precedent, Justice Kennedy recognized that student organization programs comprise limited public forums. In such a forum, restrictions on freedom of speech and association and denials of funding must be unrelated to viewpoint and reasonable in light of the purpose of the forum. In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), for example, the Supreme Court held that a university's denial of funding to a student newspaper that advocated religious views was an unconstitutional viewpoint-based restriction on speech. Justice Kennedy distinguished Rosenberger from the instant case, however, because a policy requiring all student organizations to accept all comers as members (the policy that the Court deemed applicable in this case) governs all student groups, regardless of their viewpoint.
Given this distinction from Rosenberger, the main issue for Justice Kennedy was whether Hastings' all-comers policy was reasonable in light of the forum created by the university. Justice Kennedy acknowledged that, in allowing students to exclude others on the basis of belief and associate with like-minded people, "a school creates room for self-expression and personal development." These First Amendment values were outweighed, in Justice Kennedy's view, by the school's purpose in creating student organizations: to "allow all students to interact with their colleagues across a broad, seemingly unlimited range of ideas, views, and activities." According to Justice Kennedy,
Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner and to express doubt and disagreement in a professional way. A law school furthers these objectives by allowing broad diversity in registered student organizations. But these objectives may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts. A vibrant dialogue is not possible if students wall themselves off from opposing points of view.
Justice Kennedy's conception of student organizations, as a forum where students of differing views and values can interact and exchange ideas, is laudable at first blush. However, Justice Kennedy, and thus the Court, fundamentally misunderstand how universities can educate their students to accept a diversity of perspectives. Forcing student organizations to accept those who disagree with their message teaches students that their views can be marginalized by those with more popular beliefs. Instead of allowing student groups to host events together if they wish to exchange ideas, Justice Kennedy permits the university to require them to commingle. Instead of permitting faith-based organizations to interact if they desire, every Christian organization must now accept membership of atheists, Jews, Muslims, and all Christians with vastly different interpretations of the religion.
Out of this discord, Justice Kennedy sees a way for students to "learn from and teach each other." Would that it were so. Instead, students need to learn not to fear those who congregate around views that differ from their own. Imposing tolerance from on high at the expense of First Amendment rights teaches students to be intolerant of those whose beliefs they find distasteful and offensive.