Stanley Fish on education, law and society.

A number of responses to my column on Christian Legal Society v. Martinez — a Supreme Court decision upholding Hastings Law School’s right to withhold official recognition from a Christian group that restricted its membership to co-believers who not only talked the talk but walked the walk — complain that there is too much parsing of minutiae and counting of angels dancing on the head of a pin and not enough consideration of the big substantive issues at stake, issues like discrimination against gays and the separation of church and state.

But the law is more often than not in the business of avoiding substantive issues by recasting them as issues of procedure. Rather than directly confronting the moral questions apparently animating a case, courts will replace them with the questions demanded by the tests, models and magic phrases that make up the machinery of legal inquiry in a particular area. The process of applying those tests and models and of invoking those phrases has the effect of distancing one from the urgencies felt by the opposing parties as the professional urgency to find the right (or most persuasive) rubric becomes paramount.

So C.L.S. v. Martinez ceases to be a case about Christians who want to express their beliefs and a university that wants to hold itself aloof from discriminatory practices, and becomes instead a case about expressive association, limited forums, viewpoint neutrality, compelling interests, and the distinction between belief and conduct, all of which receive explication in narrowly legal terms. Those respondents who begin their comments by declaring “It’s really very simple” are expressing a wish to sweep away the clotted jargon of the law and just get right down to it. But it doesn’t work that way.



It doesn’t even work by bringing the lens of the Constitution to bear. One of my harshest critics questioned my right to the title professor of law because, according to him, I didn’t see the obvious: “If Hastings’ . . . money had been used to support C.L.S. actions, there would have been serious Constitutional issues — blatent [sic] violations of the establishment clause. But Professor of Law Fish completely missed that point” (Pete Beck).

Well, Mr. Beck might want to sit in on my First Amendment class, where he would learn that, at least in the area of public education, the establishment clause has been pretty much rendered null in a series of cases that includes Widmar v. Vincent (1981), Rosenberger v. University of Virginia (1995), Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002). The strategy in those cases is to move the issue from the establishment clause, where the concern is state support for or entanglement with religion, to the free expression clause, where the concern is whether religion, as a viewpoint, is treated fairly with respect to other viewpoints. So the rule is changed from “no aid to religion” to “no aid that is not also given to secular entities”; evenhanded equality in aid replaces the older policy of prohibiting aid. In his dissent to Zelman, Justice David Souter draws the moral: “In the matter of educational aid the Establishment Clause has largely been read away.” And that is why, pace Mr. Beck, it wasn’t available to Hastings as a reason for withholding recognition.

Nor was the other prong of the religion clause, the free exercise clause, available to C.L.S. as an argument against the Law School’s pressure (Ginsburg called it a “carrot”) to alter its membership policies. Here the “villain” is Employment Division v. Smith (1990), a case in which the majority ruled that even if a law imposes a burden on someone’s free exercise of religion, no remedy in the form of an exemption need be granted as long as the law was neutrally conceived and applied. So C.L.S. v. Martinez, a case squarely about religion, cannot be directly adjudicated under either of the two prongs of the religion clause.

Lurking in the background of these cases is the question of exactly what a religion is. The courts do not confront that question directly — how could they? what would be their expertise? — but when even-handed treatment becomes the rule in aid and burdens on free exercise must be tolerated if imposing them was not the law’s affirmative intention, an answer has implicitly been given: religion is just another discourse, no different than any other. That is to say, religion is not special; it is not special in the negative sense implied by the establishment clause, which by its very existence announces, “watch out, this stuff is trouble”; and it is not special in the positive sense declared by the free exercise clause, which seems to announce, “this is something the state must protect.” The evisceration of the establishment clause gets religion in the door but at the expense of its unique status; the neutering or “neutraling” of the free exercise clause completes the denial to religion of the label “special.”

It is the claim of religion to be special that draws the ire and derision of several posters. Charles declares, “I don’t think that religion should have the sort of special status Fish advocates.” “The problem,” says LotsOfParticles, “is that Dr. Fish . . . sees religion as being above and exempt from the secular norms of society.”

It’s not what I see; it’s what religion is, and by definition religion sees itself as above secular norms, although the issue of being exempt from those norms is a vexed one, occupying the territory between “render unto Caesar what is Caesar’s” and “no one can serve two masters.”

The entire point of religion — at least of the theistic kind, Christianity, Judaism, Islam — is to affirm a fidelity to an authority and to a set of imperatives that exceed, and sometimes clash with, what is required by the state. The denial of religion’s claim to be special is the denial of religion as an ultimate discourse, and is, in effect, the denial of religion as religion; it becomes just one more point of view. (This is the inevitable effect of protecting religion as a viewpoint; it is just an item on a list.)

For some readers that is not enough; they are not content to have religion brought down to the level of everything else; they want religion to be brought lower and even demonized (if you’ll pardon the theological vocabulary). After insisting that “religion is not special,” Jon invites us to “consider the fact that Religion is so flawed, so repugnant, that it naturally violates many aspects of human dignity and mutual respect that we have come to admire in our secular nation.” It’s special all right, but in the sense that a monster is special. Dan says that religion is not a four-letter word, but for some respondents it is, and among the words they employ (some of them five-letter) are freak, bigot, hate, myth, lies.

This, as one reader notes, is just a form of bigotry in the guise of protesting bigotry; but behind the bigotry is a serious point made succinctly by janaka: “Christianity . . . is not a democratic institution” and therefore it “does not fit well with democracy and liberalism; rather it fits well with tyranny.” With the word “tyranny,” janaka slips into name-calling, but the basic insight is on target. Christianity, like any other religion, is not an all-comers institution, but an institution that conditions membership on adherence to specific beliefs including, in some versions, the belief that sexual relationships outside of marriage between a man and a woman are immoral and disqualifying.

Democracy, on the other hand, is an all-comers political concept; membership in the democratic polity is conditioned not on belief, but on a willingness to play by the rules — procedural non-substantive rules (or so is the claim) — proclaimed in democracy’s key documents. It follows, at least for Mike, that “illiberal groups,” groups “that do not share the values of the U.S. constitution,” thereby “demonstrate that they are not fit to [participate in] the governmental apparatus and its various institutions (including universities).” It may be the case, as Bill asserts, that “no legitimate Christian organization could do less” than restrict membership to co-believers who pledge abstinence from certain behaviors, but, as this decision and many of the comments show, the price of Christian legitimacy in the liberal state is sometimes unequal treatment and exclusion from benefits extended to those who exclude no one.

There’s the dilemma, and it is shared both by the liberal state and by religious organizations. Religious organizations face a choice between altering their core beliefs or forfeiting privileges enjoyed by others. The liberal state and its institutions face a choice between being faithful to the democratic principle of open access or closing the liberal door to those who are illiberal. Feisal Mohamed cites an amicus brief filed by Muslim, Sikh and Jewish groups that “declared it ‘fundamentally confused to apply a rule against religious discrimination to a religious organization.’”

The confusion is built-in and cannot be avoided. The university, Meridian observes, is “in an impossible position.” If it recognizes groups that discriminate in their membership policies, it will be accused of violating the First Amendment. “But if, to prevent discrimination, it conditions approval … on the agreement of religious groups to accept as voting members those who do not share their beliefs, that defeats the entire purpose of having such clubs…and is itself arguably a First Amendment violation.” Ditto for a group like C.L.S. If its membership criteria are discriminatory, “it runs afoul of the anti-discrimination law”; telling it that it can’t have those criteria, “runs afoul of the freedom of association right” (Mel). Everyone is in a perfect bind.

The dilemma is sharpened and even rendered poignant by the fact that liberalism very much wants to believe that it is being fair to religion, but what it calls fairness amounts to cutting religion down to liberal size. That is what the majority in Christian Legal Society v. Martinez does when it invokes the limited forum doctrine, which, according to a line of cases, should have protected C.L.S.’s expressive rights of association, but does not because expressive association is declared to be trumped by the value of non-discrimination.

The majority’s reasoning is anticipated by the ACLU’s amicus brief: “It would be an odd constitutional rule that prohibited public educational institutional institutions from discriminating but required them to subsidize discrimination by student groups.”

Odd, maybe, but that is just the two-level arrangement limited forum doctrine was designed to permit. A leading case is Rosenberger v. The University of Virginia, where the court points out that in the context of a limited forum, the “student groups eligible for . . . support are not the University’s agents, are not subject to its control, and are not its responsibility.” (It does not speak through the groups.) The U.V.A. program, the Court continues, “respects the critical difference ‘between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and the Free Exercise clauses protect.’” By setting up a limited forum, the university disclaims sponsorship of the groups and their messages and assumes the role of a master of ceremonies or a clearing house for private associations; as such, “it has no compelling interest in getting involved in internal issues of any group.” (amicus brief of the Boy Scouts of America)



Justice Ruth Bader Ginsburg rejects this logic and the very purpose of limited forum doctrine when she says that just as a university cannot “allow its professors to host classes open only to . . . students with a certain status or belief,” so may Hastings decide “that the educational experience is best promoted when all participants in the forum must provide equal access to all students.”

But the equivalence doesn’t work: the university does bear responsibility, both moral and legal, for assuring access (subject to grade and S.A.T. requirements) to all students no matter what their beliefs or prejudices; its actions in this regard are its speech; it owns and operates the forum of its degree programs. Ownership and message control are precisely what have been given up when the university establishes a limited forum and withdraws from direct supervision; but then it wants to come in by the back door and the majority in Christian Legal Society v. Martinez lets it. Before the decision, the Lawpundit blog predicted that ‘such a bizarre version of the law of association is doomed to defeat.” “Hence,” its authors concluded, “we see virtually no possibility that the 9th circuit decision will not be overturned.” It just goes to show.

What it goes to show is that the conflict between the liberal state, with its devotion to procedural rather than substantive norms, and religion, which is all substance from its doctrines to its procedures, is intractable. In his “Political Liberalism,” John Rawls asks how democracy’s aspiration for “a just and stable society of free and equal citizens” can be squared with the fact that some of those citizens hold beliefs that are exclusionary; how can they receive equal treatment if they deny it to others?

Another philosopher, Thomas Nagel, explains what must happen if the liberal state and its religious members are to co-exist in harmony: “Liberalism should provide the devout with a reason for tolerance,” that is, with a reason for putting tolerance above commitment to an absolute and demanding truth. There are no such reasons; the devout can only recognize reasons that flow from the structure of their devotion; liberalism can only give reasons that reflect its own commitment to neutrality. The rapprochements between them are fitful and temporary products of the endless political maneuverings we see in this case and in every case brought under the religion clause. That’s just the way it is and always will be.