Cleaning Up After Ruth Bader Ginsburg|
November 26, 2012
Of all the sloppy and confused decisions rendered by the Supreme Court in recent
years, few compare with CLS v. Martinez (2010). The decision was more than just
poorly reasoned. It was also based upon willful blindness toward factual
misrepresentations by the defendants in the case. Justice Ginsburg authored an
opinion she knew she could arrive at only by pretending to believe facts she
knew were not true.
Greg Lukianoff, president of the Foundation for Individual Rights in Education,
or FIRE, offers a good critique of the decision in his new book, Unlearning
Liberty. I write about it today because the decision is still causing
serious problems for us in higher education. The problems are due to both a)
incompetence and b) feigned ignorance concerning the holding in the case. Either
way, the mess has gotten so out of hand that the only solution is state
Nearly every conflict between a religious organization and a public university
begins with a refusal of the group to affirm sexual practices and lifestyles
that the administrators endorse. That isn't always the case but it is too often
the case. Surely, my libertarian and liberal friends agree that our public
universities ought not to have official positions on such private matters. But,
unfortunately, they do.
To be clear, these administrators do not simply favor toleration of alternative
lifestyles. Tolerance presupposes a moral judgment they, which they refuse to
offer. Instead, they use their power to make sure no one else is offering these
judgments either. If any organization goes against their beliefs about sex, they
simply refuse to recognize the organization.
Enter Christian Legal Society, or CLS, at Hastings College. A few years ago,
they had the audacity to say that anyone who "advocates or unrepentantly
engages" in sexual conduct outside of marriage between a man and a woman could
not be eligible for leadership or voting membership in their official student
group. They were de-recognized and then they sued.
Early in the litigation, Hastings College committed itself to a willful and
knowing misrepresentation of its own policies. They specifically claimed that
all groups had always been operating under an open membership or "all-comers"
policy. That is to say, they were claiming that no group was ever allowed to
exclude anyone from leadership or voting membership on the basis of beliefs
about sex - or anything else, for that matter.
The argument was demonstrably false. At the time CLS filed suit, a gay student
club, Outlaw, was forcing members to adhere to a belief statement that was
favorable toward homosexuality. Additionally, La Raza, a radical leftist
Hispanic organization, was requiring adherence to certain political beliefs.
They were also requiring that members be Hispanic.
Nonetheless, Justice Ginsberg pretended to believe an obvious falsehood in order
to fashion the following rule: public universities with all-comers policies do
not violate the First Amendment when they prevent groups from selecting members
and leaders on the basis of belief provided that the university does not target
such groups on the basis of their beliefs.
In other words, a government entity has not really deprived a group of its First
Amendment Freedom of Association rights provided it has deprived everyone else
of those same rights. It takes years of working for the ACLU to develop that
kind of enlightenment on the issue of religious liberty.
When confronted with the possibility that hostile groups might take over
organizations they disagreed with, Ginsburg dismissed the concerns as "more
hypothetical than real." Those were her actual words. The irony is that while
Ginsburg was saying she did not want to rule on a hypothetical case, she was
actually ruling on a hypothetical case. Her ruling about universities with
all-comers policies was based upon a case involving a university that did not
really have an all-comers policy. In other words, it was a "more hypothetical
than real" fact scenario.
Imagine a world with no hypotheticals. It's easy if you try, Ruth.
Now back to reality. Just two months after Ginsburg wrote her opinion, all UNC
student organizations received a memo telling them that the CLS decision
required them to sign on to a new statement concerning open membership. This was
odd, for the following reasons:
1) the CLS decision did not require anyone to do anything. It said the
university could - not must but could - impose a ban on belief requirements if
such a ban were put in place across the board.
2) No UNC campuses actually practice open membership. All of them have
fraternities and sororities that require members to take oaths of membership.
These groups typically have creeds or belief requirements. In other words, there
has never been an open membership policy at any of the UNC campuses.
In addition to not being required to impose such a ban on belief requirements,
universities in the UNC system are not even allowed to do so because they do not
impose the ban across the board. But they did in anyway.
Within two years, here at my own university, the belief requirements started to
disappear from religious and political organizations run by students wholly
unaware their rights were being violated. The university told them to remove
them in response to a non-existent mandate and they simply complied. They were
When a group I now advise came to our campus this semester, its officers were
told to remove officer belief requirements. I found out about it and fought them
successfully with the help of FIRE Vice-President Robert Shibley. Specifically,
the university altered its policies to conform to its pre-CLS practice stating
that groups founded on certain beliefs can require officers and members to
affirm those beliefs.
Game over. Right? Wrong.
A student reporter recently called our university and asked whether it was true
that - as FIRE reported on its blog, The Torch - UNCW has now backed off
its open membership policy. The university denied that it had. So I
re-investigated the matter and found something very disturbing.
Just before the new paragraph stating that groups founded on the basis of belief
can require officers and members to affirm those beliefs, a strange paragraph
appears. In this paragraph, it says that UNCW has an open membership policy with
regard to sexual orientation, religion, and a number of other variables.
So why did they specifically use the term "open membership"? And why the denial
that they have in any way backed off their previous "open membership" policy -
the one they did not actually practice because they had fraternities and
sororities who require agreement with creeds as a condition of initiation?
The reason is simple: they are using that language as a trump card. They are
preparing for the possibility that a group like CLS will come to campus and have
a specific requirement for officers concerning sexual conduct. When they do, the
university will seize upon language by Ginsburg, from CLS v. Martinez, which
talks about the difficulty of separating status (e.g. sexual orientation) from
belief (e.g. homosexuality is wrong) in the implementation of student membership
Administrators will then claim that such a requirement violates their open
membership policy - the one they do not actually have. Finally, Ginsburg or some
other dishonest judge will pretend to believe them.
The only way to prevent this from unfolding in court to the detriment of the
taxpayers is to have immediate legislative intervention. University bureaucrats
are incompetent at best and scheming at worst. It’s time for lawyers in the NC
House to come in and clean up the mess created by Ginsburg.
The state cannot offer less liberty than the Supreme Court requires. But as long
as it does not rely upon the interpretation of federal law, it can offer more.
And it should do so immediately while Republicans control the house and the N.C.
With one page of legislation, Ohio passed a law that banned all universities
from interfering with the freedom of association rights of public university
students. It should serve as a model for the nation. We should adopt it in the
Tar Heel State and even add criminal penalties for college administrators who
conspire to deprive students of their basic religious freedoms. We did it once
to stop the KKK. Why not do the same to these robed and hooded academic bigots.
Mike Adams is a criminology professor at the University of North Carolina
Wilmington and author of
Feminists Say the Darndest Things: A Politically Incorrect Professor
Confronts "Womyn" On Campus.