Thursday, November 3, 2011

George Will wants freedom of association ... for conservatives

There's a lot to unpack in George Will's column today about Vanderbilt University's decision to withhold recognition from the Christian Legal Society, a campus group that (naturally, given its orientation) wants to ensure that only Christians can be in its leadership.

I think Will goes wrong by starting to compare apples to oranges. Will must be quoted at length:
In 1995, the Supreme Court upheld the right of the private group that organized Boston’s St. Patrick’s Day parade to bar participation by a group of Irish American gays, lesbians and bisexuals eager to express pride in their sexual orientations. The court said the parade was an expressive event, so the First Amendment protected it from being compelled by state anti-discrimination law to transmit an ideological message its organizers did not wish to express.

In 2000, the court overturned the New Jersey Supreme Court’s ruling that the state law forbidding discrimination on the basis of sexual orientation required the Boy Scouts to accept a gay scoutmaster. The Scouts’ First Amendment right of “expressive association” trumped New Jersey’s law.

Unfortunately, in 2010 the court held, 5 to 4, that a public law school in California did not abridge First Amendment rights when it denied the privileges associated with official recognition to just one student group — the Christian Legal Society chapter, because it limited voting membership and leadership positions to Christians who disavow “sexual conduct outside of marriage between a man and a woman.”
It seems to me that these three cases, though, are entirely consistent. The first two uphold the rights of private organizations to choose their members and their message. The third doesn't change that! The Christian Legal Society still has a right to exist in the California case—it just doesn't have the right to use the college's funds and facilities if it's going to exclude some students from membership. As Justice Ginsburg said in writing for the majority on that case: "In requiring CLS—in com­mon with all other student organizations—to choose be­tween welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress
constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy."

If anything, Vanderbilt has a stronger defense of its policy to deny the CLS the use of its funds and facilities: Unlike Hastings, it's a private university! Surely it, like the parade organizers and the Boy Scounts, has the right to chose its own expressive associations as well! But Will smells the smoke of pernicious progressive plotting:
Although Vanderbilt is a private institution, its policy is congruent with “progressive” public policy, under which society shall be made to progress up from a multiplicity of viewpoints to a government-supervised harmony. Vanderbilt’s policy, formulated in the name of enlarging rights, is another skirmish in the progressives’ struggle to deny more and more social entities the right to deviate from government-promoted homogeneity of belief. Such compulsory conformity is, of course, enforced in the name of diversity.
Shorter Will: Freedom of association is important ... for conservatives. If a private entity wants to exclude gays, he will defend to the death its right to do so. If a private entity wants to exclude a club that excludes gays, though, it's the death of freedom. Such a one-way conception of liberty isn't really liberty at all, is it? The shape of Will's argument is—as Justice Ginsburg suggested—seeking a privileged position for social conservatives under the rubric of seeking parity. That's usually what conservative groups accuse gay rights activists of doing!

It's worth mentioning that Will's column appears the same week as news emerges about Shorter University, a Christian college in Georgia that is now requiring its employees to abstain from pre- and extra-marital sex, including homosexual sex. I don't agree with Shorter University's theology—but it is a private university which takes no state or federal money. So even though I won't be sending my son there, I will defend the college's right to choose its associations. George Will would too, I imagine. He just doesn't apply the same standards in the opposite direction. Which means he's less attached to the liberty he claims to espouse than he is to opposing gays and liberals.

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