Overstepping Their Boundaries: The Supreme Court Decides What’s Best for Christians

DAVID FRENCH
posted June 29, 2010

Yesterday, June 28, the Supreme Court ruled in Christian Legal Society v. Martinez that a university could require a Christian student group to open its voting membership and leadership to those who disagreed with the group’s statement of faith or refused to abide by its code of conduct. The Court upheld Hastings College of Law’s “all-comers” policy for student groups, a policy that requires each student group on campus to be open to every student. Under such an all-comers policy, Jewish groups would be open to Muslim leadership, African-American groups would be open to white supremacists, and a Prius club would have to be open to Nissan Titan owners like, well, me.

It was hardly surprising to see the Court’s most reliably liberal members (Justices Ginsburg, Sotomayor, Stevens, and Breyer) rule against the Christian group. They often have an expansive view of government power – including when government actions implicate fundamental First Amendment freedoms. And in this case, these justices characterized the Christian Legal Society’s efforts to meet in empty classrooms and to share their faith on campus as nothing more than an effort to enjoy various government benefits.

But four justices are not enough. To fashion a five-vote majority, the Court’s liberal wing had to win over Justice Kennedy.

Unfortunately, they succeeded. Because of the critical importance of Justice Kennedy’s vote, his brief concurring opinion is arguably the most important opinion in the case, and that opinion contains a poison pill for religious liberty. the rest