The expansion of the concept of discrimination and a loss of distinction between permissible actions in public and private spheres have eroded individuals' First Amendment freedom of association, Stanford University Constitutional Law Center director Michael McConnell said in a lecture at the Rockefeller Center on Wednesday.
"If we prevent the government from regulating the content of what we say, but allow it to regulate and control the membership, leadership or institutional structure of the groups that are the seedbed of ideas and communication, we will have given the government a powerful instrument for controlling speech, press, religion, assembly and petition," McConnell said.
McConnell represented the Christian Legal Society in the 2010 Supreme Court case Christian Legal Society v. Martinez, in which a religious organization at the University of California's Hastings College of the Law was criticized by the administration for excluding homosexual individuals from the group. The organization required members to sign a contract vowing to refrain from sexual interaction outside of marriage between a man and a woman an agreement that homosexuals were unable to truthfully sign in order to vote or assume leadership positions, according to McConnell.
The Supreme Court ruled in favor of Hastings College and forced the Christian Legal Society to leave the institution if it wished to retain its membership requirement, McConnell said.
The Christian Legal Society was subject to the court's ruling because Hastings College is a publicly-funded university, he said.
McConnell denounced the suppressive nature of the ruling and argued that the treatment of the members of the Christian Legal Society was unjustified, since members did not attempt to impose their beliefs on others but attempted to meet with like-minded individuals in discussion and worship. "Just as not everything called discrimination warrants governmental regulation, not everything called a public benefit or a subsidy gives the government discretion to interfere," McConnell said.
The decision could set a dangerous precedent of restricting freedom of association in the future, McConnell said.
"I hope this won't be much direct fallout, but I'm afraid universities are a place that have a taste for censoring unpopular expression and this will be an opportunity to do that," he said in an interview with The Dartmouth.
A mandated "all-comers" policy, which requires campus-sponsored organizations to allow any student regardless of their beliefs to participate in the group, could allow students who opposed a particular issue to attend the group's meetings, elect themselves as officers and essentially dismantle the organization, McConnell said. "An NAACP chapter would have to allow racist skinheads to sit in on its planning meetings," McConnell said. "The environmentalist club would have to allow a global warming skeptic equal time at the microphone at a climate change rally."
Four public universities have adopted an "all-comers" policy, McConnell said in an interview with The Dartmouth. Stanford University, where McConnell works, has recently considered implementing such a policy, according to McConnell.
McConnell also contrasted racial discrimination which is considered a morally impermissible action for both public and private sectors to religion, which is not morally condemned. Religious exclusivity does not fall under the same category as racial exclusivity, he said.
