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Jewish World Review July 7, 2010 / 25 Tamuz 5770 How free is First Amendment freedom of association? By Nat Hentoff
http://www.JewishWorldReview.com |
Ten years ago, the Supreme Court created a national furor in "Boy Scouts of America vs. James Dale" when it reversed a New Jersey Supreme Court decision that ordered the Boy Scouts to reinstate an openly gay (homosexual) adult rejected as an assistant scoutmaster. At stake, despite this act of discrimination, ruled the Supreme Court, was the First Amendment's right of free expressive association.
To make freedom of speech, press and religion work, Americans have the right to freely associate to amplify their individual voices. In a previous case, Justice Sandra Day O'Connor -- currently still very active in teaching students why they are Americans -- explained:
"The formation of an expressive association is the creation of a voice; and (an organization's) selection of members is a definition of that voice." Added the Supreme Court in the Boy Scouts case:
"This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas … Forcing a group to accept certain members may impair the (group's) ability to express those views, and only those views, that it intends to express."
Since that decision, despite the Supreme Court, the Boy Scouts have been punished around the country for maintaining their unpopular criteria for membership. They have been denied access, for example, to public school systems as well as former access to certain public spaces. At the Village Voice, I supported the decision, angering some colleagues and readers; and Harold Levy, then New York City's public schools chancellor, asked me to explain my unorthodoxy to his staff.
I made very little headway. Many Americans are so strongly opposed to discrimination (as am I) that, however, they make ending it an unbending priority, even when it comes to First Amendment freedom of association.
In June of this year, a fierce battle erupted again over the right of organizations to control the selection of their members. The present Supreme Court ruled, in a 5-to-4 decision, in Christian Legal Society v. Martinez, that the public Hastings College of Law in San Francisco has not violated the First Amendment by denying recognition to a student Christian group that denies membership to gay (homosexual) members and requires that its voting members and leadership sign a "statement of faith" in their Christian beliefs and values.
Hastings College of Law explains its ruling by insisting that every student organization be open to "all comers." Refusing recognition to this selective Christian organization means that it is barred from meetings spaces, funding, communications channels -- and use of the school's name and logo. The Christian Legal Society can still exist on campus, but as somewhat of a pariah organization.
Justice Ruth Bader Ginsburg, extolling diversity, wrote for the majority that included Stephen Breyer, Anthony Kennedy, Sonia Sotomayor and the departing John Paul Stevens. Dissenting were Chief Justice John Roberts, Samuel Alito, Clarence Thomas and Antonin Scalia. I would have joined them. In this victory for the Court's "liberal" wing, Justice Ginsburg ruled there is no First Amendment problem in this law school requiring student groups to accept all comers.
Writing for the dissenters, Justice Alito charged that the majority had thereby decided that there is "no freedom for expression that offends prevailing standards of political correctness in our country's institutional of higher learning" even though "there are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith."
Justice Alito, who has been a strong defender of the First Amendment rights of individual nonpolitically correct students, added that our current Supreme Court has now given state universities "a handy weapon for suppressing the speech of unpopular groups." Not a word about this ruling has been heard from President Obama or Attorney General Eric Holder, but that's not surprising.
Gee whiz, certainly the American Civil Liberties Union rushed to the defense of the First Amendment at Hastings College of Law? On the front page of the June 29 New York Law Journal, Tony Mauro and Marcia Coyle (of the National Law Journal and Legal Times) quoted the triumphant legal director of the ACLU, Steven Shapiro.
"Today's ruling sends a message that public universities need not lend their name and support to groups that discriminate. A public university has the right to enact policies that refuse to officially recognize and fund groups that deliberately exclude other members of the student body."
The ACLU suspends part of the First Amendment!
Roger Baldwin founded the American Civil Liberties Union on what he believed was the bedrock of our liberties, the First Amendment, in reaction to President Woodrow Wilson relentlessly silencing and punishing nonpolitically correct citizens and organizations during World War I.
The ACLU remains indispensable in battling and legislating against the Bush-Cheney-Obama assaults on the rest of the Constitution; but it does become infected, in times, with "political correctness" -- as in its unstinting support of additional prison sentences for those who are convicted of crimes but then get more time behind bars for their "hate speech." The Founders were against "thought crimes."
But staying fully and proudly with every American's First Amendment rights to be unpopular with any and all organizations and college officials, FIRE (the Foundation for Individual Rights in Education) (where I am on the advisory board) declares:
"This is a loss for diversity and pluralism on campus, not a win. … College Democrats have the rights to be Democrats, the College Atheists have right to be Atheists, and the College Christians have the right to be Christians." So do the College Republicans, the Tea Party legions with the Constitution in their pockets and the growing number of Independents of all religions, and none.
James Madison, who insisted on the separation of Church and State, and excluded no one from the First Amendment, would have rebuked the ACLU and the "liberal" wing of the Supreme Court for this embrace of political correctness.
Tell the American Civil Liberties Union what you think.
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