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Supreme Court Bats .500

In case you had any doubt about the centrality of the Supreme Court in our society, the Court handed down two critically important decisions today.

In  McDonald v. Chicago, the Court held in a 5-to-4 decision (not surprisingly, Justice Sonia Sotomayor was in the minority) that the Second Amendment is applicable in states and localities via the Fourteenth Amendment. Local and state handgun bans will certainly be struck down, although the Court left room for some regulation, as it does with regard to other fundamental rights. A generation’s worth of conservative legal scholarship and thoughtful jurisprudence have vindicated a right so central in the Founders’ vision that it grabbed the No. 2 spot in the Bill of Rights. Elena Kagan, what say you on this?

In the other headline grabber of the day, Christian Legal Society v. Martinez, the Court ruled that schools can require religious groups to open their doors to everyone, even if it violates the members’ beliefs (well, the original members’ beliefs). Specifically, the issue was “whether a public institution’s conditioning access to a student organization forum on compliance with an all-comers policy violates the Constitution.” The Court held it was a content-neutral policy (e.g., Republican clubs have to take Democrats; Democratic clubs must take Republicans), so there was no First Amendment violation. (The inanity of such a policy is further proof that law schools, Hastings in this case, are fonts of many things except wisdom.) So pro-choice advocates gain entry into Catholic groups, Muslims may join the Hillel, and yes, gun-ban advocates can join an NRA group. It seems shocking, I am sure, to many Americans that the rights of association and religion don’t protect against mischief-making. In dissent, Justice Sam Alito argued:

Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.

While there can be no question that the State of California could not impose such restrictions on all religious groups in the State, the Court now holds that Hastings, a state institution, may impose these very same requirements on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints.

Alito adds a final, devastating critique of the majority’s reasoning:

In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” … With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague.

The result, I suspect, will not be chaos but rather the privatization of — and thus discrimination against — religious groups, which will no longer enjoy school financial support, use of facilities, etc. It is a perverse result but one that, for now, is the law of the land. Is Kagan keen on this one?

Don’t expect her to answer queries on either of these cases. The senators — both liberal and conservative — would do well to insist she does, however.



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