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.
The argument was demonstrably false. At the time CLS filed suit, a gay student club, Outlaw, was forcing members to adhere to a belief statement that was favorable toward homosexuality. Additionally, La Raza, a radical leftist Hispanic organization, was requiring adherence to certain political beliefs. They were also requiring that members be Hispanic.
Nonetheless, Justice Ginsberg pretended to believe an obvious falsehood in order to fashion the following rule: public universities with all-comers policies do not violate the First Amendment when they prevent groups from selecting members and leaders on the basis of belief provided that the university does not target such groups on the basis of their beliefs.
In other words, a government entity has not really deprived a group of its First Amendment Freedom of Association rights provided it has deprived everyone else of those same rights. It takes years of working for the ACLU to develop that kind of enlightenment on the issue of religious liberty.
When confronted with the possibility that hostile groups might take over organizations they disagreed with, Ginsburg dismissed the concerns as "more hypothetical than real." Those were her actual words. The irony is that while Ginsburg was saying she did not want to rule on a hypothetical case, she was actually ruling on a hypothetical case. Her ruling about universities with all-comers policies was based upon a case involving a university that did not really have an all-comers policy. In other words, it was a "more hypothetical than real" fact scenario.
Imagine a world with no hypotheticals. It's easy if you try, Ruth.
Now back to reality. Just two months after Ginsburg wrote her opinion, all UNC student organizations received a memo telling them that the CLS decision required them to sign on to a new statement concerning open membership. This was odd, for the following reasons:
1) the CLS decision did not require anyone to do anything. It said the university could - not must but could - impose a ban on belief requirements if such a ban were put in place across the board.
2) No UNC campuses actually practice open membership. All of them have fraternities and sororities that require members to take oaths of membership. These groups typically have creeds or belief requirements. In other words, there has never been an open membership policy at any of the UNC campuses.
In addition to not being required to impose such a ban on belief requirements, universities in the UNC system are not even allowed to do so because they do not impose the ban across the board. But they did in anyway.
Within two years, here at my own university, the belief requirements started to disappear from religious and political organizations run by students wholly unaware their rights were being violated. The university told them to remove them in response to a non-existent mandate and they simply complied. They were duped.
When a group I now advise came to our campus this semester, its officers were told to remove officer belief requirements. I found out about it and fought them successfully with the help of FIRE Vice-President Robert Shibley. Specifically, the university altered its policies to conform to its pre-CLS practice stating that groups founded on certain beliefs can require officers and members to affirm those beliefs.
Game over. Right? Wrong.
A student reporter recently called our university and asked whether it was true that - as FIRE reported on its blog, The Torch - UNCW has now backed off its open membership policy. The university denied that it had. So I re-investigated the matter and found something very disturbing.
Just before the new paragraph stating that groups founded on the basis of belief can require officers and members to affirm those beliefs, a strange paragraph appears. In this paragraph, it says that UNCW has an open membership policy with regard to sexual orientation, religion, and a number of other variables.
So why did they specifically use the term "open membership"? And why the denial that they have in any way backed off their previous "open membership" policy - the one they did not actually practice because they had fraternities and sororities who require agreement with creeds as a condition of initiation?
The reason is simple: they are using that language as a trump card. They are preparing for the possibility that a group like CLS will come to campus and have a specific requirement for officers concerning sexual conduct. When they do, the university will seize upon language by Ginsburg, from CLS v. Martinez, which talks about the difficulty of separating status (e.g. sexual orientation) from belief (e.g. homosexuality is wrong) in the implementation of student membership policies.
Administrators will then claim that such a requirement violates their open membership policy - the one they do not actually have. Finally, Ginsburg or some other dishonest judge will pretend to believe them.
The only way to prevent this from unfolding in court to the detriment of the taxpayers is to have immediate legislative intervention. University bureaucrats are incompetent at best and scheming at worst. It’s time for lawyers in the NC House to come in and clean up the mess created by Ginsburg.
The state cannot offer less liberty than the Supreme Court requires. But as long as it does not rely upon the interpretation of federal law, it can offer more. And it should do so immediately while Republicans control the house and the N.C. governor's mansion.
With one page of legislation, Ohio passed a law that banned all universities from interfering with the freedom of association rights of public university students. It should serve as a model for the nation. We should adopt it in the Tar Heel State and even add criminal penalties for college administrators who conspire to deprive students of their basic religious freedoms. We did it once to stop the KKK. Why not do the same to these robed and hooded academic bigots.