It was good timing, having Senate hearings on Elena Kagan’s nomination to the Supreme Court begin on the same day as the Court’s 5-4 ruling that the University of California’s Hastings College of Law acted reasonably in refusing to recognize a Christian group that denies membership to homosexual students. The Senate hearings are premised on the idea that Court nominees should be chosen and interrogated based entirely on their “judicial philosophy” and ideas about the law. So nominees dutifully say things about modesty and justices as umpires and so forth, even as we all understand that the Hastings decision had nothing to with the law and everything to do with the justices’ personal convictions about homosexuality.
Some people believe that sexual orientation is a fundamental element of personhood. From there, it logically follows that a college’s obligations to nondiscrimination overwhelm any reasonable deference to freedom of association and religious conviction. If the Church of I Hate Black People had been denied recognition as a student group, it never would have made it to the Supreme Court.
Other people believe that homosexuality represents an aberrant and immoral lifestyle choice. From there, it logically follows that student groups, particularly religious organizations, should be free to incorporate that moral conviction into their membership policies, in the same way that the student chapter of the NAACP should be free to exclude those who belong to the Church of I Hate Black People.
Clearly, the four liberal members of the Supreme Court belong to the first group, and the four conservative members belong to the second. Anthony Kennedy, the swing vote, belongs to the first, which we knew because he authored the expansive majority opinion in Lawrence v. Texas, which ruled that anti-sodomy laws are unconstitutional. Thus, 5-4 for Hastings.
The point being, this all has very little to do with the law. That’s why, despite President Obama’s slow movement on Don’t Ask Don’t Tell and his public opposition to gay marriage, his election was a victory for the cause of equal rights for gay and lesbian citizens. When a court vacancy opens up, you get Elena Kagan instead of Samuel Alito.
Alito’s condemnation of the decision as banning any “freedom of expression that offends prevailing standards of political correctness in our country’s institutions of higher learning” gives the game away, I think. Like most people I believe our institutions of higher learning can sometimes be fairly accused of politically correct excess. But in this case Alito sounds like a man appealing to anti-P.C. sentiment as a means of distracting from his choice to be among the long and ignoble line of American jurists who have used their positions of power to slow the nation’s progress toward building a just society.
The Hastings College of Law deserves a great deal of credit for fighting this fight, and stands in marked contrast to the many other colleges and universities in similar situations that lacked the courage of their nondiscriminatory convictions. It takes relatively little effort to uphold the civil rights victories of past generations. The decisions that matter are those that speak to victories not yet fully won. In the wake of Hastings, students and faculty should press campus leaders to do the right thing.