The Supreme Court is about to hear a case brought by the
Christian Legal Society (CLS) against the Hastings Law School in San Francisco,
a public university. The law school refused to register CLS as a recognized
student organization because it discriminated against non-Christians and gays.
The CLS claims that this violates its freedom of association with others of
similar beliefs. Hastings says that CLS is free to believe what it wants but
cannot have university (state tax payer) funds and use of university facilities
if they violate the university’s anti-discrimination policies. Needless to say,
if this issue had a simple and easy resolution, it would have been resolved
long before reaching the Supreme Court.
As a country we have limited the areas of such conflicts by
limiting the scope of government involvement in our lives and associations.
Christian, Muslim, Buddhist, or atheist groups are free to form and limit their
membership to the like minded. Their right to do so is protected by the U.S.
Constitution and by the cultural respect for privacy and the rights of others
that is an enduring feature of our country. This right is unchallenged when
exercised in the purely private sphere. But as government involves itself in
more and more areas of our daily lives, such conflicts have multiplied and must
be resolved at the state rather than the private level where individuals are
free to have different answers to important moral and philosophical questions.
To me, it is foolish for a university to prohibit clubs that
will only admit members who share the purpose and beliefs of the clubs’
founders. On the other hand, I find it objectionable for the state to prevent a
university from setting whatever policy it wants for clubs or for the students
it wishes to admit and teach. However, such thinking is more clearly applicable
to private universities, which are in fact private associations like the
clubs/groups in question. Public universities are funded in part from general taxpayers’
money. As such, they must not favor the religious or social views of some
taxpayers against those of others. Here is where the conflict of values—freedom
of religious belief and assembly, and non-discriminatory use of the taxpayers’
The well known case of the Boy Scouts banning membership to
gays comes to mind. While I would refuse to join an organization with such
Neanderthal attitudes and find the image of some homophobic scout master
quaking at the thought of a potential encounter with a homosexual scout
pathetically amusing, I think the Boy Scouts should be free to define
membership qualifications anyway they like. The problem, of course, comes when
they want to use public facilities and public funds. And the real problem is
that it is increasingly difficult to find any activity that does not involve
public/taxpayer funds in some way or other. Jonathan Turley provides an
excellent discussion of this conflict and of this latest Supreme Court case in
Sunday’s Washington Post.
The Court will hopefully find a pragmatic balance between
these two social and constitutionally protected values. But we should also not
give up on trying to limit the scope and reach of the government into our every
day lives. The argument made by Milton Friedman and others long ago that a
social interest in education does not justify the state building and operating
schools is as valid for universities as for grammar schools. He championed
tuition vouchers—i.e. public financing of education privately produced and
delivered—that students could use at any school they chose that would accept
them. It is hard to believe that the money government spends to subsidize
university educations in public universities produces better results than if
the same financial assistance were given in the form of vouchers (and research
grants) to be used at private universities of the customers’ (students’)
choice. The problem of conflicting values would not go away—could vouchers be
used at Jewish, Christian, Muslim schools—but it should make it easier to
fashion pragmatic solutions that broaden or protect the freedom of religion and
association of one person without violating such rights for others. It would
also surely improve the quality of education per dollar spent.
in the name of equality”, The
Washington Post, April 18, 2010. Page B01.