In the era of the leviathan state, we need the Constitution more than ever. When most citizens think of our obviously expanding government, we think of the direct, obvious costs. The deficit hits record levels, bank bailouts costs $1 trillion, the stimulus nearly matches that, and total government spending - as a percentage of gross domestic product - reaches numbers not seen since the nation's life-and-death struggle during World War II. We're staggered by those numbers, worry about the debt we're passing on to our children and wonder if we live in a nation in decline.
But there's more.
Massive spending means massive government - a system that reaches into virtually every corner of our lives. From house loans to student loans to light bulbs to toilets and even to the cars we buy and drive, we feel the government's direct hand. Corporate executives worry about "pay czars," doctors worry about government-set prices for their services, and we all wonder if the Internal Revenue Service will be monitoring our health insurance choices.
Massive government means government control, the strings attached to money, to participation and even to expression as the government goes beyond the original purpose of its multitude of programs and attempts to alter social outcomes, favor certain viewpoints and - most ominously - suppress others.
One such example is a case that will be heard before the Supreme Court on April 19.
In 2004, the University of California's Hastings College of Law decided to "de-recognize" the Christian Legal Society, a decision that denied CLS the right to meet on campus, denied it access to a student-fee fund that its own members paid into, and even denied it access to campus message and bulletin boards. CLS' crime? The group, like most Christian groups, has rules that limit its leadership and voting membership to people who the share the group's beliefs and agree to live their lives accordingly. In other words, no stealing, no lying, no cheating, no drugs and no extramarital sex.
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To Hastings, these common-sense rules were evidence of "discrimination" on religious and sexual-orientation bases. When CLS had the temerity to complain of its treatment, the university had a ready response: We're not depriving you of your rights, we're just limiting your access to "government benefits."
To stay on campus, CLS had to sue, and it did so through its attorneys with the Alliance Defense Fund and CLS Center for Law & Religious Freedom. After all, there was no democratic safeguard upon which the chapter could rely. No one actually votes for the dean, and bureaucracies are often several steps removed from even the most cursory legislative oversight. The trial court ruled against the students, buying the school's "benefits" argument, and the 9th Circuit affirmed in a two-sentence opinion. Because this decision conflicted with decisions in other cases (actually every other case outside the 9th Circuit) and because it deals with vital issues regarding the limits of government authority, the Supreme Court took it up to review.
So, is it really the case that CLS is merely crying over lost "benefits?" Can a university attach such coercive strings to after-hours access to empty classrooms? Philosophically and legally, the answer should be a resounding "no."
Philosophically, the Hastings argument runs directly against the very notion of a government "of the people and by the people." It is simply not the case that the government exists and owns assets separate and apart from its citizens - assets that it can use to accomplish whatever agenda it chooses. In fact, Hastings is denying students access to their own classrooms and funding - classrooms they pay for with their tuition dollars and funding they create with their own money. The proper role of the government is to safeguard the citizens' assets, not to exclude some from public property for the sake of approving or disapproving religious beliefs.
Legally, the Supreme Court has long understood this reality, even to the point of holding in 1972 that a potentially violent student organization - the Students for a Democratic Society, a group that had shut down campuses from coast to coast - had a freedom-of-association interest in access to university facilities. The court also held that the government cannot do indirectly those things that it's prohibited from doing directly. This 1972 case, called Healy v. James, should govern the Christian Legal Society's case.
After all, if the government can't directly tell a religious organization that it is not allowed to limit its voting membership or leadership to people who share its faith (who has ever heard of a Muslim rabbi?), then it can't do so indirectly by denying citizens access to their own classrooms and their own money.
How much can our leviathan government use its control over public property and your money to control your speech? To suppress your beliefs? We will soon know the answer.
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