FIRE has already provided one summary of the preliminary reactions to the Supreme Court's decision in the case of Christian Legal Society v. Martinez, and the commentary continues to flow. Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Laurence A. Tisch Professor of Law Designate at New York University Law School, served as counsel of record for the libertarian Cato Institute's amicus brief in support of CLS. Today, Professor Epstein adds his critical take on the decision in a column for Forbes.
Regarding the narrow yet perilous path the Court charted in ruling against CLS, Epstein writes:
As a general matter of First Amendment theory, it is always easier for a group to show that its rights to speech and religion are infringed when the group is singled out for special treatment. That singling out makes it easier for the dominant faction inside any organization to impose harmful restrictions on others that they themselves do not have to bear. A rigorous nondiscrimination rule thus tempers the enthusiasm of a dominant political faction by forcing it to play by the same rules it wants to impose on its opponents.
It is, however, a massive mistake to reason from the converse, by holding that any general and neutral policy should pass constitutional scrutiny as a matter of course. Many First Amendment cases do in fact tend in that direction. Nonetheless, that risky position accords too much weight to disparate treatment and insufficient weight to the messier question of disparate impact. Quite simply, a disparate treatment rule still allows the dominant faction to rig the formal rules in ways that impact only their enemies. Historically, the rules in the old South that allowed individuals after the Civil War to vote only if their grandfathers did were neutral and targeted only black citizens.