{"id":24,"date":"2010-06-29T08:40:56","date_gmt":"2010-06-29T08:40:56","guid":{"rendered":"http:\/\/blog.beliefnet.com\/religionandpubliclife\/2010\/06\/christian-legal-society-loses.html"},"modified":"2010-06-29T08:40:56","modified_gmt":"2010-06-29T08:40:56","slug":"christian-legal-society-loses","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/06\/christian-legal-society-loses.html","title":{"rendered":"Christian Legal Society Loses"},"content":{"rendered":"

Reporting<\/a>
\non yesterday’s 5-4 Supreme Court decision<\/a>
\nin Christian Legal Society<\/i> v. Martinez<\/i>, the NYT’s Adam
\nLiptak described the case as a clash between “religious freedom and
\nantidiscrimination principles.” But actually it was a proxy war.
\nNeither religious freedom nor antidiscrimination clashed as such.<\/p>\n

At
\nissue was the refusal of California’s Hastings School of Law to
\nrecognize–i.e. provide official recognition and material support
\nfor–the Christian Legal Society (CLS), because it required all members
\nto disavow “unrepentant participation in or advocacy of a sexually
\nimmoral
\nlifestyle–i.e. no unrepentant gays and lesbians need apply. This
\nviolated the school’s policy requiring student groups to admit all
\ncomers.<\/p>\n

As Justice Alito’s dissent points out, the school had
\nadopted its all-comers policy out of a belief that its previous
\nantidiscrimination policy would be harder to defend before the Court.
\nIt’s hard to disagree with the Times<\/i>‘ editorial<\/a>
\nthat, whatever the tactical advantage of “all-comers,” a
\nstraightforward ban on discrimination was the moral way to go. Still,
\n“all-comers” does represent antidiscrimination policy by a kind of force
\nmajeur<\/i>.<\/p>\n

That religious freedom was only obliquely engaged is
\nthanks to the Court’s 1990 decision, Employment Division <\/i>v.
\nSmith,<\/i> wherein Justice Scalia managed to get five votes to establish
\nthe rule that any “neutral law of general applicability” is sufficient
\nto turn back a claim of religious free exercise. As Justice Ginsburg’s
\nplurality decision put it in a footnote:<\/p>\n

In Smith<\/i>,
\nthe Court held that the Free Exercise Clause does not inhibit
\nenforcement of otherwise valid regulations of general application that
\nincidentally burden religious conduct. Id., at 878-882. In seeking an
\nexemption from Hastings’ across-the-board all-comers policy, CLS, we
\nrepeat, seeks preferential, not equal, treatment; it therefore cannot
\nmoor its request for accommodation to the Free Exercise Clause.<\/p><\/blockquote>\n

Simply
\nput, prior to Smith<\/i>, CLS would have had a straight-up
\nopportunity to argue that the Free Exercise Clause gave it a right to be
\nexempt from Hastings’ (preferably) antidiscrimination policy. It’s
\nironic that Scalia, who signed Alito’s dissent, has made it much harder
\nfor religious groups to advance their claims, and telling that the
\ndissent cites various earlier Free Exercise cases but does not so much
\nas mention Smith<\/i>.<\/p>\n


\nThat’s not to say that CLS would have–or should have–won. While
\nreligious groups are entitled to draw boundaries according to their
\ndoctrinal lights, Hastings might well have been judged to have a
\ncompelling interest in denying CLS the state support it wanted. American
\nsociety is better served, however, when we can see the Court balancing
\nthe legitimate claims of religious freedom and antidiscrimination, as
\nopposed to the kind of veiled and involuted argumentation that we were
\nhanded yesterday.<\/p>\n

In one sense at least, Christian Legal Society <\/i>came along at a
\npropitious moment–the very day Elena Kagan began her Senate
\nconfirmation hearings to replace Justice Stevens. While working in the
\nClinton White House, Kagan was very much involved on behalf of President
\nClinton’s effort to overturn the Smith <\/i>decision legislatively,
\nvia the Religious Freedom Restoration Act. The act, signed into law by
\nClinton in 1993, was declared unconstitutional by the Supreme Court in Boerne<\/i>
\nv. Flores<\/i> in 1997. In both Smith <\/i>and Boerne<\/i>,
\nStevens was in the majority. Would Kagan have been? Will any senator ask
\nher?<\/p>\n","protected":false},"excerpt":{"rendered":"

Reporting 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. At issue was the refusal of California’s Hastings School of Law…<\/p>\n","protected":false},"author":222,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-24","post","type-post","status-publish","format-standard","hentry"],"yoast_head":"\nChristian Legal Society Loses - Religion & Public Life With Mark Silk<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/06\/christian-legal-society-loses.html\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Christian Legal Society Loses - Religion & Public Life With Mark Silk\" \/>\n<meta property=\"og:description\" content=\"Reporting 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. At issue was the refusal of California’s Hastings School of Law…\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/06\/christian-legal-society-loses.html\" \/>\n<meta property=\"og:site_name\" content=\"Religion & Public Life With Mark Silk\" \/>\n<meta property=\"article:published_time\" content=\"2010-06-29T08:40:56+00:00\" \/>\n<meta name=\"author\" content=\"Mark Silk\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Christian Legal Society Loses - Religion & Public Life With Mark Silk","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/06\/christian-legal-society-loses.html","og_locale":"en_US","og_type":"article","og_title":"Christian Legal Society Loses - Religion & Public Life With Mark Silk","og_description":"Reporting 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. 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After teaching at Harvard in the Department of History and Literature for three years, he became editor of the Boston Review. In 1987 he joined the staff of the Atlanta Journal-Constitution, where he worked variously as a reporter, editorial writer and columnist. In 1996 he became the founding director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College and in 1998 founding editor of Religion in the News, a magazine published by the Center that examines how the news media handle religious subject matter. In 2005, he was named director of the Trinity College Program on Public Values, comprising both the Greenberg Center and a new Institute for the Study of Secularism in Society and Culture directed by Barry Kosmin. In 2007, he became Professor of Religion in Public Life at the College. Professor Silk is the author of Spiritual Politics: Religion and America Since World War II and Unsecular Media: Making News of Religion in America. He is co-editor of Religion by Region, an eight-volume series on religion and public life in the United States, and co-author of The American Establishment, Making Capitalism Work, and One Nation Divisible: How Regional Religious Differences Shape American Politics. In 2007 he inaugurated Spiritual Politics, a blog on religion and American political culture.","url":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/author\/msilk"}]}},"_links":{"self":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/24","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/users\/222"}],"replies":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/comments?post=24"}],"version-history":[{"count":0,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/24\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/media?parent=24"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/categories?post=24"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/tags?post=24"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}