Of all the sloppy and confused decisions rendered by the Supreme Court in recent years, few compare with CLS v. Martinez (2010). The decision was more than just poorly reasoned. It was also based upon willful blindness toward factual misrepresentations by the defendants in the case. Justice Ginsburg authored an opinion she knew she could arrive at only by pretending to believe facts she knew were not true.
Greg Lukianoff, president of the Foundation for Individual Rights in Education, or FIRE, offers a good critique of the decision in his new book, Unlearning Liberty. I write about it today because the decision is still causing serious problems for us in higher education. The problems are due to both a) incompetence and b) feigned ignorance concerning the holding in the case. Either way, the mess has gotten so out of hand that the only solution is state legislative intervention.
Nearly every conflict between a religious organization and a public university begins with a refusal of the group to affirm sexual practices and lifestyles that the administrators endorse. That isn't always the case but it is too often the case. Surely, my libertarian and liberal friends agree that our public universities ought not to have official positions on such private matters. But, unfortunately, they do.
To be clear, these administrators do not simply favor toleration of alternative lifestyles. Tolerance presupposes a moral judgment they, which they refuse to offer. Instead, they use their power to make sure no one else is offering these judgments either. If any organization goes against their beliefs about sex, they simply refuse to recognize the organization.
Enter Christian Legal Society, or CLS, at Hastings College. A few years ago, they had the audacity to say that anyone who "advocates or unrepentantly engages" in sexual conduct outside of marriage between a man and a woman could not be eligible for leadership or voting membership in their official student group. They were de-recognized and then they sued.
Early in the litigation, Hastings College committed itself to a willful and knowing misrepresentation of its own policies. They specifically claimed that all groups had always been operating under an open membership or "all-comers" policy. That is to say, they were claiming that no group was ever allowed to exclude anyone from leadership or voting membership on the basis of beliefs about sex - or anything else, for that matter.
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