By Suzanne Garment and Leslie Lenkowsky
Among the pearls of wisdom attributed to the great sage Groucho Marx was his view that “I wouldn’t want to belong to any club that would accept me as member.”
This week the Supreme Court solved Groucho’s problem by ruling, in Hastings Christian Fellowship v. Martinez, that a university can force any club to let Groucho join, even if he totally disagrees with its purposes. And as a member, he can launch a hostile takeover.
That is not a good result for the principle of freedom of association. It fails to recognize that for nonprofit groups to be effective in championing unpopular views, they often need to place restrictions on who can join their organizations.
The Supreme Court case grew out of a refusal by the Hastings College of the Law at the University of California to recognize a chapter of the Christian Legal Society, a national organization that has sought to create affiliates on many campuses.
Like many colleges, Hastings requires student organizations to obtain official recognition before they can receive the institution’s support for their activities. It also requires those organizations to adhere to a nondiscrimination policy. Hastings interprets nondiscrimination to mean that a group must “accept all comers,” admitting any student who wants to join.
That became a problem for the Christian Legal Society, which requires its members to sign a “statement of faith” that affirms their theological views, including, as the Supreme Court noted, the belief that “sexual activity should not occur outside of marriage between a man and a woman.”
When the Christian Legal Society chapter sought recognition from Hastings, it also asked for an exemption from the college’s nondiscrimination policy. Otherwise, the society said, the college would violate the organization’s First Amendment freedom of association by forcing the group to include members who do not share its most fundamental views. Hastings denied the exemption, so the society sued.
Ten years ago, in Boy Scouts of America v. Dale, the Supreme Court acknowledged the importance of the freedom of “expressive association” when it upheld the right of the Boy Scouts to refuse to employ a gay assistant scoutmaster. By a 5-4 majority, the court held that the organization’s long-held views on sexual activity would be compromised if it were required to have employees who did not share them.
The Scouts’ First Amendment freedom of “expressive association” protected its right to select its own members, even in the face of laws generally forbidding discrimination on the basis of sexual orientation.
But the Hastings case, said Justice Ruth Bader Ginsburg, writing for the majority, was not a simple matter of “expressive association.”
Instead, the case was governed by what is called the “limited public forum” doctrine, which permits colleges, universities, and other institutions—including those, like Hastings, that receive government money—to restrict First Amendment rights if they have a valid reason to do so. The court held that Hastings had valid reasons, including the encouragement of “tolerance, cooperation, and learning among students.”
True, the restrictions imposed by the limited public forum cannot favor one point of view over another. For example, in a previous case, the court invalidated a ban by the University of Virginia on the campus distribution of a religious publication because the institution had allowed distribution of similar publications with nonreligious content.
The Christian Legal Society contended that the “accept all comers” rule discriminated against its beliefs in much the same way. But, as the Supreme Court majority noted, the Hastings policy applied to all student groups—that a Republican student association had to admit Democrats and vice versa, and an African-American organization had to be open to Italian Catholics—and that other groups abided by the policy, while Christian Legal Society admitted only those who adhered to the “statement of faith.”
Therefore, Justice Ginsburg and her colleagues reasoned, the Hastings policy was not biased toward particular points of view. The policy might or might not be a good way to promote diverse viewpoints on campus, but that was up to Hastings to judge. As long as the policy was applied evenhandedly, regardless of a group’s viewpoint, the “accept all comers” rule was an acceptable restriction on the First Amendment.
Four Justices disagreed. They asked how the “accept all comers” policy actually operated at Hastings.
“Even if it is assumed that the policy is viewpoint neutral on its face,” Justice Samuel A. Alito Jr., wrote for the dissent, “there is strong evidence in the record that the policy was announced as a pretext” for limiting the presence of a group whose views about sexual activity were controversial on campus. Because the policy was a pretext, he argued, the court’s ruling was a “serious setback for freedom of expression in this country.”
The majority of the justices agreed that the lower courts had not examined the way Hastings enforced its policy with other campus groups and said the issue could be raised in further proceedings.
Michael W. McConnell, who represented the Christian Legal Society (and directs Stanford University’s Constitutional Law Center), said his organization would indeed raise the question in new hearings and hoped ultimately to win its case.
But proving that campus groups are actually complying with the “accept all comers” rule will not be easy.
People generally do not seek to join organizations that do not want them as members. Consequently, groups that do not have particularly provocative views may be unlikely to face challenges because of the Hastings policy.
Organizations that do hold controversial convictions, however, have more need to limit their membership to those who share their views. Such organizations may be more inclined to discourage—or even expel—those who disagree. Those are precisely the groups whose behavior is most likely to come into conflict with an “all comers” policy. Thus, the policy inherently targets groups with unpopular views.
The Supreme Court’s reluctance to recognize this fact—that a policy eliminating a group’s ability to choose its own members also restricts its ability to champion unpopular views—is a worrisome development.
Leslie Lenkowsky is a professor at Indiana University and a regular contributor to The Chronicle’s opinion section. He and Suzanne Garment, a visiting fellow at Indiana University, are writing a book on philanthropy and public policy.