Religion & Public Life With Mark Silk

Religion & Public Life With Mark Silk

Christian Legal Society Loses

on yesterday’s 5-4 Supreme Court decision
in Christian Legal Society v. Martinez, the NYT’s Adam
Liptak described the case as a clash between “religious freedom and
antidiscrimination principles.” But actually it was a proxy war.
Neither religious freedom nor antidiscrimination clashed as such.

issue was the refusal of California’s Hastings School of Law to
recognize–i.e. provide official recognition and material support
for–the Christian Legal Society (CLS), because it required all members
to disavow “unrepentant participation in or advocacy of a sexually
lifestyle–i.e. no unrepentant gays and lesbians need apply. This
violated the school’s policy requiring student groups to admit all


As Justice Alito’s dissent points out, the school had
adopted its all-comers policy out of a belief that its previous
antidiscrimination policy would be harder to defend before the Court.
It’s hard to disagree with the Timeseditorial
that, whatever the tactical advantage of “all-comers,” a
straightforward ban on discrimination was the moral way to go. Still,
“all-comers” does represent antidiscrimination policy by a kind of force

That religious freedom was only obliquely engaged is
thanks to the Court’s 1990 decision, Employment Division v.
wherein Justice Scalia managed to get five votes to establish
the rule that any “neutral law of general applicability” is sufficient
to turn back a claim of religious free exercise. As Justice Ginsburg’s
plurality decision put it in a footnote:


In Smith,
the Court held that the Free Exercise Clause does not inhibit
enforcement of otherwise valid regulations of general application that
incidentally burden religious conduct. Id., at 878-882. In seeking an
exemption from Hastings’ across-the-board all-comers policy, CLS, we
repeat, seeks preferential, not equal, treatment; it therefore cannot
moor its request for accommodation to the Free Exercise Clause.

put, prior to Smith, CLS would have had a straight-up
opportunity to argue that the Free Exercise Clause gave it a right to be
exempt from Hastings’ (preferably) antidiscrimination policy. It’s
ironic that Scalia, who signed Alito’s dissent, has made it much harder
for religious groups to advance their claims, and telling that the
dissent cites various earlier Free Exercise cases but does not so much
as mention Smith.


That’s not to say that CLS would have–or should have–won. While
religious groups are entitled to draw boundaries according to their
doctrinal lights, Hastings might well have been judged to have a
compelling interest in denying CLS the state support it wanted. American
society is better served, however, when we can see the Court balancing
the legitimate claims of religious freedom and antidiscrimination, as
opposed to the kind of veiled and involuted argumentation that we were
handed yesterday.

In one sense at least, Christian Legal Society came along at a
propitious moment–the very day Elena Kagan began her Senate
confirmation hearings to replace Justice Stevens. While working in the
Clinton White House, Kagan was very much involved on behalf of President
Clinton’s effort to overturn the Smith decision legislatively,
via the Religious Freedom Restoration Act. The act, signed into law by
Clinton in 1993, was declared unconstitutional by the Supreme Court in Boerne
v. Flores in 1997. In both Smith and Boerne,
Stevens was in the majority. Would Kagan have been? Will any senator ask

Comments read comments(10)
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posted June 29, 2010 at 12:16 pm

What a terrible Supreme Court decision. We must elect a Republican president next time, so he (or she) can appoint Christians to the SC.

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posted June 29, 2010 at 12:40 pm

“What a terrible Supreme Court decision. We must elect a Republican president next time, so he (or she) can appoint Christians to the SC.”
Because that isn’t judicial activism at all. Btw, this Court has been mainly appointed by Republicans and is more conservative than the courts of the past century.
Additionally, Stevens, now considered the most liberal justice on the court, was a Republican appointee. But we don’t want to disturb a theocratic delusion of how the country works, now do we?

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posted June 29, 2010 at 2:27 pm

This is my first time reading this blog. I disagree with the analysis of the other 2 posters, in that I believe this was a great decision. It was poorly argued by the Christian legal Society. They tried to skirt the issue by changing the wording of their own antidescrimination policy to call it “all comers”. To me, this says they welcome ALL, LGBT, Pagan, whatever. I believe the justices read it that way as well. This is what it implies.

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Not a Christian

posted June 29, 2010 at 2:38 pm

“We must elect a Republican president next time, so he (or she) can appoint Christians to the SC.”
So interpreter wants to bring back the religious test for public officals? Jews are no longer welcome on the Supreme Court? Who else are you going to ban? What small group will make you happy? Oh wait, you probably have never been happy.

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posted June 29, 2010 at 6:07 pm

A Republican Supreme Court Justice can [even] decide who should be President. They can do anything.
Exclusion is not Christian. So, I think that my concern would be…what does the “Christian Legal Society” do? Do they help [only] other Christians? Or are they there for all people? After all they are “non-profit” so there are guidelines; and even christians, have to obey the laws of the land. or change them. Turning up our noises only attracts flys.

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A. Nonymous

posted June 30, 2010 at 4:26 pm

“While working in the Clinton White House, Kagan was very much involved on behalf of President Clinton’s effort to overturn the Smith decision legislatively, via the Religious Freedom Restoration Act.”
Unless General Kagan was freelancing for President Clinton before she joined the White House Counsel’s office, this is factually incorrect. Indeed, General Kagan did not join the Clinton White House until 1995, 2 years after RFRA was signed into law in 1993.
Perhaps the blogger is confusing the U.S. Supreme Court’s 1990 Employment Div. v. Smith decision with the 1996 California Supreme Court decision also featuring a party named Smith, which involved RFRA.

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Mark Silk

posted June 30, 2010 at 4:37 pm

My mistake, A. Nonymous. It was indeed the California Supreme Court decision that Kagan was commenting on. She was at the time representing a White House very much committed to RFRA–and expressed that point of view in the memo she wrote. Things didn’t turn out so well the following hyear. Anyway, thanks.

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Your Name

posted July 9, 2010 at 1:21 pm

Ah yes, “General” Kagan. That’s about as “Christian” (i.e.”loving”) as calling your type the “Religious Reich”.
CAPTCHA: “misled wingo” – so very, very accurate, considering.

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Grumpy Old Person

posted July 20, 2010 at 5:28 pm

Mr. Silk, shouldn’t this article have been (also) filed under “gay” or “gays” or “gay rights” or even “equal rights”?
Sure is hard to search your posts if they’re not tagged sufficiently.

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