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Wednesday, July 02, 2014

Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez

Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities:  “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.  One can only wonder why the Court shuts this key difference from sight.”

But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez.  In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices.  Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not?  In Martinez, it seemed to some of us that the "Court shut this key difference from sight."

For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.

Posted by Rick Garnett on July 2, 2014 at 02:42 PM in Rick Garnett | Permalink

Comments

I don't see what one has to do with the other. CLS v. Martinez was a limited public forum case and the question was whether the all-comers rule was viewpoint-neutral and reasonable. It was. That doesn't mean it was a good rule (it wasn't) or that it's right to apply the same non-discrimination rule to CLS as you do to the chess club (it's not). It just means that the rule doesn't violate the First Amendment.

The piece you excerpt from Ginsburg's dissent is about how to think about which organizations can make RFRA claims. I don't agree with her conclusion. But I don't see how her view that the character of an organization should affect its ability to make a RFRA claim has any bearing on the correctness of CLS v. Martinez.

Posted by: JHW | Jul 2, 2014 5:27:10 PM

I don’t think either Rick or I is making a doctrinal comparison (although many scholars have critiqued Martinez’s limited public forum analysis and its premise that the rights of speech and association “merge”). My point in linking Justice Ginsburg’s Hobby Lobby rhetoric to her Martinez majority was to suggest that the distinction between groups made up of religious believers and those more open to diverse beliefs is often a fairly intuitive one. The all-comers logic operative in Martinez elides the distinction. Consider two related cases. In Truth v. Kent, 543 F.3d 634 (2008), the Ninth Circuit concluded that a high school Bible club violated a school district’s nondiscrimination policies because the club’s requirement that its members “possess a ‘true desire to . . . grow in a relationship with Jesus Christ’ inherently excludes non-Christians.” Another Ninth Circuit decision, Alpha Delta v. Reed, 648 F.3d 790 (2011), suggested that a public university might deny official recognition to Christian student groups that limit “their members and officers [to those who] profess a specific religious belief, namely, Christianity.” Those kinds of conclusions are only possible if one ignores the implications of the language that I highlighted from Justice Ginsburg's Hobby Lobby dissent. (Interestingly, it’s not clear to me that the binary distinction holds as easily in Hobby Lobby itself — some commercial actors like Hobby Lobby and some religious nonprofits may explicitly want to embrace persons of diverse beliefs, at least in certain contexts. That’s one of the reasons that an earlier HHS accommodation limited to nonprofits that "serve primarily persons who share the religious tenets of the organization” came under fire and was ultimately modified.)

Posted by: John Inazu | Jul 3, 2014 10:50:46 AM

"My point in linking Justice Ginsburg’s Hobby Lobby rhetoric to her Martinez majority was to suggest that the distinction between groups made up of religious believers and those more open to diverse beliefs is often a fairly intuitive one. The all-comers logic operative in Martinez elides the distinction."

Again, I don't understand the line of reasoning here, and the other cited cases don't help me. What do you mean by saying that "[t]he all-comers logic operative in Martinez elides the distinction"? If you mean that the all-comers policy itself ignores this distinction, you're right, but none of these cases were about whether the school policy in question was wise. What is it about the First Amendment analysis in these cases that rests on denying or overlooking the tenability of the distinction?

If we want to talk about themes instead of doctrine, CLS v. Martinez is at least as much a case about institutional autonomy, or government flexibility in which groups it chooses to include in government programs, or judicial restraint and deference in the context of educational institutions, as it is about the appropriate balance between non-discrimination and respecting the right of religious groups to safeguard their character and identity. I am not the only one who thinks both that the decision is clearly right and that the policy it upheld is clearly wrong.

Posted by: JHW | Jul 3, 2014 2:46:27 PM

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