ACRU Senior Fellow Robert Knight wrote this column appearing on WashingtonTimes.com on April 26, 2010.
The University of California Hastings College of the Law case, which the U.S. Supreme Court heard on April 19, has its share of absurdity, but what’s missing is moral outrage.
The school denied recognition to a Christian Legal Society campus chapter because it will not have atheists or homosexuals as officers. Yes, it’s absurd on the face of it, like insisting that People for the Ethical Treatment of Animals be forced to install meat-lovin’ rocker Ted Nugent.
It’s bad enough that a prestigious law school committed unconstitutional discrimination against a Christian club. It’s even more unsettling that some Supreme Court justices can’t fathom the difference between unalienable, constitutional rights and newly coined identity-based claims emanating from the infinitely expandable right to privacy. That’s the one discovered in the birth control cases, perfected in Roe v. Wade, and elevated to cosmic heights in Planned Parenthood vs. Casey, where Justice Kennedy emoted that the meaning of the universe is the search for the meaning of the universe.
Associate Justice Sonia Sotomayor showed why 31 Senators voted against her. She opined that a college club that upholds rules about sexual morality and faith is like, racist or sexist, man:
“Are you suggesting that if a group wanted to exclude all black people, all women, all other forms of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds, and otherwise lend it space?”
Well, there goes the men’s rugby team. And the campus NOW chapter. They’ll be treated like the Boy Scouts, who are still victims of this kind of thinking, even after their Supreme Court victory in 2000.
Michael McConnell, representing the Christian Legal Society, argued that a group may discriminate on the basis of beliefs, not status. Chief Justice John Roberts said, “Gender or race is fundamentally different from religious belief. Gender and race is a status. Religious belief has to be based on the fundamental notion that we are not open to everybody. We have beliefs; you have to subscribe to them. And we have always regarded that as a good thing.”
Antonin Scalia added, “to require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”
This one seems like a slam dunk, based on the association question alone. But a core issue—the conflation of morality with bigotry—still needs revisiting in the manner that Scalia addressed it in Lawrence v. Texas (2003):
“Today’s opinion is the product of a Court, which is the product of a law-profession culture that has largely signed on to the so-called homosexual agenda... It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
To raise moral concerns is to guarantee public scorn. In the 1960s, Tom Wolfe noted that the Upper East Side (and Hollywood) liberals suppressed any mention of communism’s atrocities by making it a breach of etiquette to be anti-communist.
A similar phenomenon has occurred regarding sexual morality. In After the Ball, a 1989 strategy manual written by two Harvard-trained public relations experts, gay activists were urged to enforce “jamming,” that is, to make someone ashamed for even having a particular thought by delivering a swift and severe public penalty for expressing it
Many people are now so terrified of being “judgmental” that they no longer attempt to have rational discussions about what is normal, natural or healthy.
In the California case, the naked threat to free association will probably allow freedom to carry the day. But the law school’s and its advocates’ insistence that sexual morality itself is indistinguishable from bigotry is a problem that runs deeper.
Until this dangerously absurd premise is delegitimized, we will see many more cases like this, especially if Congress passes the Employment Non-Discrimination Act (ENDA).
The final result will be the criminalization of Christianity and Orthodox Judaism.