Religion & Public Life With Mark Silk

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

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