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The World Will Be Different

Publication Date: 
May 11, 2010
Timothy Dalrymple

Professor Michael McConnell, an expert on religion and the law, is interviewed by Timothy Dalrymple of Patheos:

Constitutional provisions separating church and state were intended by the Founding Fathers not merely to prevent the establishment of a state church but also (and especially) to protect the churches from government interference. Those longstanding protections hang in the balance as the Supreme Court prepares its decision on Christian Legal Society v. Martinez, according to Michael McConnell. Oral arguments were presented on April 19, 2010, and a decision is expected in June.

The case began roughly six years ago, when the Hastings School of Law, which belongs to the public University of California system, denied official status to a Christian student group because it required its members to affirm a statement of faith and conduct. The Christian Legal Society (CLS), a nationwide ministry to students and practitioners of the law, professes the traditional Christian teaching that sex is reserved for marriage between a man and a woman. This, determined the law school and its dean, Leo Martinez, constitutes discrimination on the basis of religion and sexual orientation.

McConnell argued the case before the Supreme Court on behalf of CLS. A federal judge on the Tenth Circuit Court of Appeals from 2002 to 2009, he is one of the nation's preeminent authorities on the framework of church and state. McConnell now directs the Stanford Constitutional Law Center at Stanford University.

He spoke by telephone with Timothy Dalrymple.

Before we come to the details of CLS v. Martinez, I want to ask: Where do you see the emerging battlefronts right now on matters of religious liberty?

It depends in part on how CLS v. Martinez is decided. If it is decided in favor of Hastings, it will open up any number of battlefronts where political majorities that dislike one or another aspect of religious practice will employ all of the carrots and sticks at the government's disposal to attack what they do not like.

The essential theory underlying Hastings' position is that allowing a group to meet on campus amounts to a benefit or a subsidy that the university is entitled to grant or withhold on the basis of its own approval or disapproval of the group's practices. If that is so, if being able to participate on an equal basis with other groups in the common resources of civil life is a benefit or subsidy that the government controls in this way, then there is essentially no more separation between church and state. The government will be able to exercise a kind of power over religious organizations that it has never before exercised in America.

The opposition might say that they are protecting the separation of church and state by keeping the state from subsidizing a religious group. Yet you insist that it is you who are on the side of the separation of church and state, because you are rejecting the notion that the state can encourage some religious groups and inhibit others by granting common resources to those it favors and withholding those resources from those it does not favor. Is that right?

That's exactly right. One of the critical questions here is what we consider a "benefit" or a "subsidy." The right to speak on an equal basis on public property has never been understood to be a benefit or subsidy.

Could Hastings' line of argument eventually lead, for instance, to some churches being denied the tax-exempt status other churches receive if they are unwilling to ordain female or homosexual pastors? If the state could give advantages to the religious groups it favors, and therefore social-engineer the churches, where would this line of argument stop?

I think that is clearly what their argument is. Hastings itself explicitly cites tax-exempt status as a benefit to which the state can attach conditions. And for the past twenty years, feminist law professors have argued that tax-exempt status should be denied churches that discriminate on the basis of sex in the selection of clergy.

If the state can withdraw tax-exempt status because it does not approve of the way in which a church conducts its business, I have no idea where it will stop. Can the state withhold the ability to operate on government property? How about the use of the airwaves? The use of the postal service? Having your denomination represented in the chaplaincy corps? How about attaching conditions on individuals who use government benefits to obtain government-subsidized services such as voucher programs, hospitals, Medicare and Medicaid? All of those things are generally available to everyone, and we do not think of them as being occasions for the government to manipulate religious groups or individuals.

Obviously, there are political obstacles that would have to be overcome before threats of this kind could be put into effect. But if the Hastings case were decided in favor of Hastings, there would only be political obstacles and not Constitutional ones. All of these conflicts would become political battles for the legislatures, rather than having Constitutional protections that guarantee freedom of religion from the outset. That would open up any number of nasty battles that the First Amendment was intended to foreclose.

What exactly were the grounds on which Hastings refused to recognize CLS?

There are over sixty registered student groups on the Hastings campus, and when the Christian Legal Society applied to be one of them, it was told that Hastings could not grant them the same status as other groups because their insistence that their officers and those who vote for their officers subscribe to a statement of Christian beliefs amounted to discrimination on the basis of religion and sexual orientation.

The litigation history is complicated because Hastings shifted its rationale for disapproving CLS in the midst of the litigation. When CLS was denied, they were told it was pursuant to a written non-discrimination policy, and they had discriminated on the basis of religion and sexual orientation. Yet once the litigation started, about a month into the discovery process, Hastings shifted and said their policy is actually that all student groups have to be fully open, including their leadership and voting membership, to all students. Later this "all-comers" policy was refined yet again to the claim that you cannot discriminate on the basis of status or beliefs, which means that groups are specifically not allowed to confine their membership to people who believe in the fundamental purposes of the organization.

This is a very strange policy. So far as we can tell, it has not been adopted by any other public university or public law school in the country. It's by no means clear that Hastings even applies it at Hastings. There are something like eight student organizations who were allowed to register in the same year as CLS whose bylaws are in violation of an all-comers policy, yet it was never suggested that any of them were in violation.

When we point this out in our brief, Hastings' response is "Yes, but CLS is the only one whose bylaws violate one of the specific non-discrimination categories." Which of course is our point: it has never been about an all-comers policy, which is a late and for-litigation-only concoction of the law school. It has always been about discrimination on the basis of religion or orientation.

After the oral arguments were concluded, reports stated that the Supreme Court justices seemed confused over exactly the policy at issue. Was this a result of Hastings' shifting rationale?

That's right. The court would like to have a clearer case to decide. Legally speaking, our view is that it doesn't really matter, since both policies are unconstitutional, though for different reasons.

Are they redesigning their case in order to become a landmark case with a broader application, or in order to stand on more solid ground legally?

We don't know. The evidence in the case is closed as of 2004--2005. So we don't know what they have done since they announced this policy. Although, I can tell you that if you go to the Hastings website and click on student organizations, and click on the bylaws of the student organizations, you'll find at least four that still violate the all-comers policy. Yet that's not something the Supreme Court can look at.

Dean Martinez makes some pretty remarkable statements about the all-comers policy in a PBS report that was broadcast the day before oral argument before the Supreme Court. He says that racist skinheads could sit in on the NAACP chapter, and so on. I recommend you look at it, because people think I must be exaggerating when I spell out the implications of the Hastings policy. This is not an exaggeration; it comes right out of their mouths.

[Editor's Note: The link below is the PBS report, and the comments to which Mr. McConnell refers begin at 4:58.]

Watch the full episode here. See more Religion & Ethics NewsWeekly.

It's difficult to avoid the impression that this is another expression of liberal academics' antipathy toward Christianity, as though Christianity itself is discriminatory and oppressive and deserving of exclusion from the public sphere. Around the country there have been numerous cases of public colleges or universities attempting to deny normal student-group status and resources to Christian groups that require their members or leaders to consent to a statement of faith that includes traditional Christian positions on sexuality. Yet we could certainly imagine other groups that are even more exclusionary or discriminatory. Why are Christian groups singled out?


Or is this asking you to speculate outside your comfort zone?

[Laughs.] Well, I would ask Hastings that question. But I don't think it's any secret that traditional Christianity is regarded by many as inimical to the progressive project. And the truth is that until the sexual orientation issue arose, even Hastings didn't really care. Yet the important point is that the Christian Legal Society theologically does not believe in discrimination on the basis of orientation, but only on the basis of belief and conduct: that is, whether you believe that sex is properly reserved for married couples. They ask their members to subscribe to the traditional Christian teaching that sex is reserved for marriage between a man and a woman.

Our position, however, has absolutely nothing to do with what one thinks about same-sex conduct or whether sexual orientation should be protected as a matter of law. Our case would be identical in its legal framework if I were representing a religious student group that advocated same-sex marriage and was excluding leaders and voters who refused to accept the legitimacy of same-sex marriage. Our position would be exactly the same if we were representing a gay rights group that had been excluded from campus on the grounds that it didn't allow homophobic evangelicals to become voting members and officers. The First Amendment position here is completely independent of what happened to be this group's own beliefs about sexual morality.

I hope the Supreme Court sees that. A Civil Rights organization could be just as threatened under different social circumstances. It was not long ago that the ACLU was kept off of campuses. A fledgling chapter of the NAACP would have just as much reason to confine its officers and voters to people who share their mission. This is about protecting the freedom of any group to be able to form around shared beliefs.

It's also hard to avoid what seem to be the broader philosophical implications of this case.

There are broader philosophical implications. I'm a little hesitant to say what I think they are, but they're pretty plain on the surface of the case.

One philosophical question at issue seems to be: Is it always wrong to differentiate between persons? Or are there proper and improper grounds of "discrimination"? Are we reaching a point where we are prohibited from making any meaningful differentiation of persons, or are we still permitted to form groups centered on shared beliefs?

The problem is that Hastings and its supporters seem to believe that any time you slap the label "discrimination" onto something, it necessarily entitles the state to try to suppress it -- even when it is a religious organization "discriminating" on the basis of religion.

There is absolutely nothing invidious or immoral or improper or unneighborly or hostile or anything wrong whatsoever about religious organizations insisting that they be controlled by their own people. Being able to gather together with Catholics in one church and Baptists in their own organization, or Jews in a Talmud study, is very fundamental to the right of free exercise of religion. The state has zero legitimate interest in discouraging that. It's none of the state's business. That's what separation of church and state means.

Given the importance and the broad implications of the case, has it received sufficient attention in the media? When it was argued before the Supreme Court, there were several prominent editorials, but it dropped pretty quickly out of view. Are the media missing the boat here?

The case would be enormously important in a bad way if Hastings were to prevail. For CLS to prevail would simply be to shore up Constitutional protections that the court has been providing for the last thirty or forty years. My guess is that if CLS wins, all of the folks on the other side of the case will say, "Well, of course. This is a very small case." Yet if Hastings wins, and especially if they win on the theory that the government can withhold "benefits" to any group it disapproves of, the world will be a very different place the day after.

Some press organs have been better than others. Some outlets were extremely careless about their characterization of the facts in the case, where they described the case as about whether CLS could exclude "gays." That's completely ignoring the issue of discrimination on the basis of orientation versus conduct and belief.

Some newspapers also talked as though this were about CLS getting money. There is some possibility of money being involved. There is a student activities fee paid to the student government, and the student government doles out money to student groups that put on activities of campus-wide importance. If CLS prevails, they will be able to apply for that, but whether the student government gives them money is extremely unlikely. The student government submitted a brief in this case saying that the "vast majority" of students at Hastings believe that CLS ought to be kept off of campus, and that students ought to have a right to join CLS in order to "vote for change from within" -- which is to say that people who disagree with CLS's beliefs ought to be able to join and vote to change those beliefs. So the student government is hardly likely to give CLS money. The case is not about money.

The press was also very sloppy in discussing the Constitutional treatment in past cases of access to a forum in a public university. I believe this is the sixth case involving various student groups who are excluded. The Supreme Court has stood up for the student groups every time, and every time the University claims that this should be treated as a subsidy and they shouldn't be required to sponsor or endorse the group, and that the group is free to exist but not get the active support of the university. Every time, every time the Supreme Court has responded that a forum for speech and the use of public facilities is not endorsement, is not sponsorship, is not subsidy, and the University has to comply with the First Amendment in just the way that towns do with respect to access to parks and sidewalks and other forums for speech. The press did not acquaint their readers with that rather important part of the background.

But there's not much use complaining about the press. Some are better and some are worse. Some skirt the issues. The New York Times editorial says, "This is an easy case; the government does not have to subsidize discrimination." Thus they beg the question of what is a subsidy and they beg the question of what is discrimination. I also cannot believe that they would take this position if the shoe were pinching a different foot.

Michael W. McConnell received his law degree at the University of Chicago and clerked for Supreme Court Justice William Brennan. He is respected on the Right for his originalist judicial philosophy, and was considered a likely selection for the Supreme Court during the administration of George W. Bush. He is also respected on the Left for his criticism of the impeachment of President Clinton and of Bush v. Gore. When Barack Obama was the editor of the Harvard Law Review, it was Michael McConnell, then a professor at the University of Chicago, who was impressed by a suggestion the young Obama made on one of McConnell's articles and thus brought Obama on a fellowship to Chicago.

McConnell has written books and articles and numerous influential opinions. The Supreme Court has reviewed four cases in which McConnell wrote an opinion, and has agreed with McConnell every time.