Two fairly important oral arguments at the Supreme Court today, involving work place privacy (pagers) and equal access rules for university clubs. The latter is discussed below in answer to Dahlia Lithwick's column.
This is an unbelievably hard case, pitting a religious group's basic right to define and preserve its core beliefs against a publicly funded university's effort to ensure that school-sponsored and -funded groups do not discriminate on the basis of religion or sexual orientation.
This sounds a bit like being "mandated" to purchase health insurance meaning that if you do not -- and in the process negatively affect others -- you are required to pay a tax. [See here for the great burden they suffered.] The religious group is not refused a chance to "define and preserve its core beliefs" here -- they have every right to do that. The question is if they should be able to take student funds but not the students themselves. IOW, they want to have their cake and eat it too. The group is left with trying to avoid stipulated facts to try to show that they are completely barred, which is not the case.
But judging from the ideological zeal of today's battle, you'd think the case was open-and-shut. The liberals are for nondiscrimination. The conservatives are certain that liberals plan to infiltrate unpopular Christian groups for nefarious purposes. If there was any hugging, I missed it entirely.
Well, no. Kennedy and Breyer -- by the analysis itself -- appear to be unclear about what to do. By a new alchemy are we now told that Kennedy is a "liberal" or what? Note the law school is being defended by a former solicitor general of the Bush Administration. Curiosity too: Michael McConnell resigning the federal appellate bench after about seven years of service.
Notice is also made that it seems the some of the justices (remember Sotomayor and Ricci, the fire department racial discrimination case?) might be upset the appellate court disposed of the case too blithely. Darn Ninth Circuit! Well:
Before: KOZINSKI, Chief Judge, HUG and BEA, Circuit Judges.
The [**3] parties stipulate that Hastings imposes an open membership rule on all student groups--all groups must accept all comers as voting members even if those [*646] individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649-50 (9th Cir. 2008).
Kozinski was a Kennedy clerk back in the day, so maybe his conservative bona fides should have an asterisk? OTOH, though there might be no "hugging," there was a "hug" here. Kent cited an equal access policy ruling involving a requirement that:
any organization which denies membership on the basis of race, color, creed, sex or political belief
could not be sponsored by the school, but that -- pursuant to federal law -- a religious club that did not violate that general rule should be allowed. IOW, a religious club there wanted to be treated like everyone else, not to be treated special.
It is debatable if general student funds should even go to certain religious groups. But, if it is, a true "equal access" policy works both ways -- take the money, you have strings.