WHEN: 16 September 2010
BY: Michael Zeller
From the start, neither Dr. Bruce Frohnen nor University of Louisville’s own Sam Marcosson would choose to pull punches. During a spirited debate on Thursday, September 16, Frohnen and Marcosson discussed the merits of the Christian Legal Society v. Martinez. The recent Supreme Court case confronted the contentious issue of public funding for exclusive organizations, in this case the Christian Legal Society (CLS) of the University of California, Hastings College of Law. The issue concerned was whether California law stipulating that all registered student organizations allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs" violated the CLS’s First Amendment rights. In a 5 – 4 decision, the Supreme Court affirmed the decision of the Ninth Circuit Court of Appeals, that California’s “all-comers” policy was reasonable and not a violation.
Frohnen began by describing the case and some of the interesting background quirks that accompany many significant cases. These included the fact that the “all-comers” policy was applied to student organizations after legal proceedings between the CLS and the University had already commenced. In his sarcasm-laced opening salvo, Frohnen depicted this case as the latest of a long attack on religion and the rights of association. It is a constitutional right, Frohnen emphasized, for an organization to be private and exclusive.
Sam Marcosson countered with the argument that the “government has the right to uphold certain standards and to deny aid to groups that choose not to abide by them.” This should not be perceived as license to curb a group’s First Amendment rights, but it does mean that if the CLS wishes to remain exclusive it should not expect government support. “I hold that you may deny and discriminate all you wish, but you may not demand public funding to do so” said Marcosson.
The question of homosexuality, specifically the CLS’s prohibition of students so inclined, figured prominently in the debate. Frohnen’s insisted that, since CLS also disapproves of premarital heterosexual promiscuity, homosexuality was not of central import to the case. However, the questions from the audience displayed the futility of such deflection. Professor Tomain of the Brandeis School asked whether the issue of exclusion would be the same if it involved a non-religious organization. Frohnen alluded to his previous comments about the government’s antagonism towards religion. He posited that the situation would not be as severe. Marcosson conversely claimed that the issue would be the same, pointing to the universal application and enforcement of “all-comers” policies such as California’s.
“The various angles and arguments that the professors on both sides of the debate used were intriguing. This event helped further awareness of the intricacies of law and the delicate balance that must be respected” said senior McConnell Scholar Chelsey Hall.
Sophomore Ben Shepard asked if the anti-exclusivity policies of the government could be considered discriminatory. Professor Marcosson revealed the statistical fact that formerly exclusive groups usually retain their identity despite inclusive stipulations. “Then why do it” questioned Shepard. Schools should not feel compelled to endorse a discriminatory policy or a religious group with exclusive policies. Frohnen attributed this concept to a misreading of the 14th Amendment. “It is a deeply engrained liberal belief that we must balance ‘rights’ and ‘equality’ [of condition].”
Shepard summarized the event quite accurately. “Today’s debate illustrated that constitutional interpretation is not so much a question of judicial nicety as it is a debate over our society’s deeply seated philosophical prejudices.”
BY: Michael Zeller
From the start, neither Dr. Bruce Frohnen nor University of Louisville’s own Sam Marcosson would choose to pull punches. During a spirited debate on Thursday, September 16, Frohnen and Marcosson discussed the merits of the Christian Legal Society v. Martinez. The recent Supreme Court case confronted the contentious issue of public funding for exclusive organizations, in this case the Christian Legal Society (CLS) of the University of California, Hastings College of Law. The issue concerned was whether California law stipulating that all registered student organizations allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs" violated the CLS’s First Amendment rights. In a 5 – 4 decision, the Supreme Court affirmed the decision of the Ninth Circuit Court of Appeals, that California’s “all-comers” policy was reasonable and not a violation.
Frohnen began by describing the case and some of the interesting background quirks that accompany many significant cases. These included the fact that the “all-comers” policy was applied to student organizations after legal proceedings between the CLS and the University had already commenced. In his sarcasm-laced opening salvo, Frohnen depicted this case as the latest of a long attack on religion and the rights of association. It is a constitutional right, Frohnen emphasized, for an organization to be private and exclusive.
Sam Marcosson countered with the argument that the “government has the right to uphold certain standards and to deny aid to groups that choose not to abide by them.” This should not be perceived as license to curb a group’s First Amendment rights, but it does mean that if the CLS wishes to remain exclusive it should not expect government support. “I hold that you may deny and discriminate all you wish, but you may not demand public funding to do so” said Marcosson.
The question of homosexuality, specifically the CLS’s prohibition of students so inclined, figured prominently in the debate. Frohnen’s insisted that, since CLS also disapproves of premarital heterosexual promiscuity, homosexuality was not of central import to the case. However, the questions from the audience displayed the futility of such deflection. Professor Tomain of the Brandeis School asked whether the issue of exclusion would be the same if it involved a non-religious organization. Frohnen alluded to his previous comments about the government’s antagonism towards religion. He posited that the situation would not be as severe. Marcosson conversely claimed that the issue would be the same, pointing to the universal application and enforcement of “all-comers” policies such as California’s.
“The various angles and arguments that the professors on both sides of the debate used were intriguing. This event helped further awareness of the intricacies of law and the delicate balance that must be respected” said senior McConnell Scholar Chelsey Hall.
Sophomore Ben Shepard asked if the anti-exclusivity policies of the government could be considered discriminatory. Professor Marcosson revealed the statistical fact that formerly exclusive groups usually retain their identity despite inclusive stipulations. “Then why do it” questioned Shepard. Schools should not feel compelled to endorse a discriminatory policy or a religious group with exclusive policies. Frohnen attributed this concept to a misreading of the 14th Amendment. “It is a deeply engrained liberal belief that we must balance ‘rights’ and ‘equality’ [of condition].”
Shepard summarized the event quite accurately. “Today’s debate illustrated that constitutional interpretation is not so much a question of judicial nicety as it is a debate over our society’s deeply seated philosophical prejudices.”