Friday, April 23, 2010

The Freedom to be Anti-Religious

Earlier this week the Supreme Court heard argument in Christian Legal Society v. Martinez, the issue being whether Hastings College of Law, part of the University of California system, can deny official status and benefits to a group that requires its leaders and voting members to accept its core religious beliefs, including that marriage is between a man and a woman. A decision should come down before the end of the Court’s term in June. The expectation is that the Justices will rule in favor of CLS and not simply because the Court has become more conservative.

This case should not have reached the Supreme Court. It has because a federal district judge ruled against CLS, a decision that was affirmed in an astonishingly brief opinion by the U.S. Court of Appeals for the Ninth Circuit, which demonstrates anew that hostility toward religion remains alive, if not entirely well, within the judiciary. It’s also another illustration of the remarkable irony (because of their polar ideologies) that Gay Rights and the Gun Lobby are the most powerful interest groups today in the country.

There are sixty student groups registered at Hastings. CLS alone is penalized for alleged discrimination, although for sure there are more than a handful of groups that have requirements or understandings that limit who can be leaders and active members to students who meet specified parochial criteria. This is certainly true of Jewish groups on campus and, likely, of all or nearly all religious groups. In his brief for CLS, Michael W. McConnell, the noted constitutional scholar and former federal judge, points out that the bylaws of La Raza restrict what is referred to as “policy” membership to students “of Raza background,” meaning “persons of Latino or Mexican descent.” There are other examples of similar selectivity. The singling out of CLS is nasty business.

The animus toward CLS – at Hastings and other campuses – contributes to the polarization and ideological warfare that increasingly mark American public life. What is lost is a sense of moderation and also the acceptance of the reality that this is a large country with a huge and diverse population and that we should expect and accept diversity and disagreement on key issues and practices. Those who oppose Gay marriage should not be penalized, especially when their opposition is based on sincere and long held religious beliefs and especially when we recognize that as recently as about a decade ago, Gay marriage was scarcely on the public agenda.

We hear much about pluralism and tolerance, terms that are standard fare for liberals, many Jews included. There is no need to preach or practice tolerance toward beliefs and practices that we endorse. Unless there is a willingness to respect the right of others to hold beliefs that are contrary to our own, pluralism and tolerance are empty, even hypocritical, terms. Of course, these twin ideals are not an invitation to harm others. As with basic values generally, there are limits. The test must assess intent and impact, whether what is believed aims to harm those of different belief and whether, irrespective of intent, persons whose beliefs are different are being hurt. CLS requires nothing more than that those who lead and make decisions for the group adhere to its core beliefs. Gays suffer not at all as a consequence, while the actions of a public institution to punish CLS strike me as afoul of the Free Exercise clause.

As it prepares to rule, the Supreme Court is the recipient of a ton of amicus curiae or friend of the court briefs on either side of the issue. I doubt that the Justices regard these offerings as particularly friendly or necessary or whether the briefs add much to the argument. They are essentially interest group statements, as I learned more than a half century ago when, as a graduate student, I examined amicus briefs in civil liberties cases.

We Jews have contributed handsomely to the flow, with the Orthodox in CLS’s corner and a slew of organizations on the side of Hastings. Agudath Israel and the Orthodox Union have submitted separate briefs, while Young Israel has signed on to the submission by the Becket Fund which has emerged as the primary legal defender of the rights of religious groups and persons. The failure of Orthodox groups to cooperate is regrettable, especially because on public affairs issues they surely do not disagree. Decades ago, when intra-Orthodox division was far greater than it now is, cooperation on litigation and legislation was routine. There were leaders of greater vision and stature then.

To its credit, the American Jewish Congress weighed the equities and decided not to take a position. The American Jewish Committee has weighed in against CLS, although its brief is tepid. It should have stayed out of the case. The Anti-Defamation League comes on in its brief like a bull in a china shop and, like bulls in china shops are wont to be, its behavior is strange. Unlike the amicus it signed on to at the Ninth Circuit level, the focus is an attack against President Bush’s faith-based initiatives. Whatever one may think of our previous president and his policies, they are not the issue before the Supreme Court. I wonder what the legal hotshots, including three at Weil, Gotchal & Manges, were thinking when they drafted such an inappropriate and foolish document.

As expected, the New York Times maintains its record of hostility to religious groups in an editorial on the CLS case published on the day that the Supreme Court heard argument. With the Times and the traditional anti-religion crowd, sadly made up of a significant number of Jews in its corner, the ADL should reap contributions into its coffers. What about the contribution that ADL is making to the defamation of Jews as a group that is hostile to religion?