In the decades since the stirring successes of the 1960s civil-rights movement, opposition to discrimination has become a kind of benchmark social virtue, one embraced by all reasonable people of good will. Just as references to “human dignity” often seem designed to elicit cheers without the need for substantive argument, the proper response to discrimination is to shout “boo!” and join in the collective effort to root out the practice.

But what do we mean by discrimination? And do all forms of discrimination merit the same government response as the racial discrimination that plagued the Jim Crow South? Just as consensus on human dignity tends to break down on policy specifics, so too, perhaps, does the consensus surrounding the evil of discrimination seem less impressive at second glance.

Consider Christian Legal Society (“CLS”) v. Martinez, a case currently before the U.S. Supreme Court. The conflict began when the University of California Hastings College of the Law in San Francisco withdrew recognition of the student chapter of CLS because, while the group permitted any student to participate in its events, it required that its officers and voting members affirm a statement of faith, part of which asserted that biblical standards prohibit “all acts of sexual conduct outside of God’s design for marriage between one man and one woman [including] fornication, adultery, and homosexual conduct.” As a result of having recognition withdrawn, CLS lost access to reserved meeting space, school communication channels, student-orientation fairs, and student-activity funds. In its suit, CLS claimed that the law school violated its constitutional rights to free speech, free association, and the free exercise of religion. The law school defended its policy as one of requiring all student groups to be open to all students, calling it fair and neutral.

The case has been followed closely in many circles, and the implications of the Court’s ruling could be wide-ranging. If the Court rules for CLS, does that mean that no state university can withhold recognition from any kind of discriminatory organization? Are the Students for White Supremacy, for example, entitled to their share of student activity fees? More broadly, can the government ever withhold funding from a group simply because it discriminates? What if a charity seeking funding for its soup kitchen refuses to hire blacks? What if it refuses to serve them?

In light of these implications, CLS has worked mightily to narrow its argument, emphasizing that its policy remains focused on prospective officers’ beliefs (for example, do they affirm Christian teaching?) rather than on their status (for example, sexual orientation), and that the law school could constitutionally prohibit groups from discriminating based on status. This is a sensible distinction, for while a coherent group identity requires an ability to select leaders who share the group’s beliefs, a state institution committed to equality need not offer its support to groups dedicated to the categorical exclusion of racial, ethnic, or sexual minorities. Even this distinction, though, raises as many questions as it answers, especially in the context of sexual orientation. To many, requiring the affirmation of a belief—the immorality of homosexual conduct—that rejects a constitutive element of one’s sexual orientation gets painfully close to status discrimination. The student chapter of the Ku Klux Klan may open membership to blacks, but what if admission requires them to affirm white supremacy?

Navigating the boundary between status and belief is not the end of the difficulty. There is also the question of context. The prudence of using state power to prohibit discrimination depends on who is doing the discriminating—and in this case (unlike in the Jim Crow South), we are not faced with an entire society hard-wired for a disfavored minority’s exclusion. Our society has recently been moving toward greater acceptance of gays and lesbians; seen in this light, the CLS case is not about whether the law should create social space for long-marginalized minorities, but whether it should protect social space for a group with a worldview increasingly counter to prevailing cultural norms. CLS’s practices are not specifically homophobic: while prospective student leaders in the group have been denied eligibility on the ground of heterosexual cohabitation, the rule against homosexual conduct has in fact never been applied.

Consider, furthermore, the potential implications of a Court ruling in the law school’s favor. The Young Republicans could be compelled to open their leadership to Democrats. A university could require a ten-student on-campus Muslim group to allow fifty avowed anti-Muslims to take over the group and promptly disband it. Confronted during oral arguments with such a hypothetical situation, the best response that the law school’s attorney could come up with is that “the members would rejoin and form another group.”

The crux of the problem in CLS v. Martinez is that in punishing discrimination by a private group without clearly identifying the harms to be redressed, the law school’s exclusion of CLS implies that all discrimination is self-evidently and categorically harmful. Of course, no one really believes this. Imagine the reaction to a preschool that did not discriminate against sex offenders in its hiring. It is easy to identify the harms associated with our nation’s long history of racial discrimination. Martin Luther King Jr. poignantly portrayed those harms in his Letter from Birmingham Jail:

[W]hen you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky...then you will understand why we find it difficult to wait.

But what is the harm caused by a Christian group’s requirement that its leaders affirm the group’s animating values? Being excluded from leadership in a group may be an affront to one’s dignity, but we surely do not wish to deploy state power to forbid all affronts to dignity. The impact of such a prohibition on group identity would be devastating, and the resulting impact on individual identity—which is formed and maintained, in significant part, by the ability to gather with others around shared beliefs—would be equally grim.

So if we intend to have a serious conversation about the conflict between Hastings law school and the Christian Legal Society, we first need to have a serious conversation about concepts that serve today as ubiquitous but undefined touchstones of good citizenship: concepts such as diversity, equality, and nondiscrimination. Several questions come to mind. First, does our commitment to diversity extend only to the makeup of a particular organization, or are we also willing to see the social value in diversity among organizations? Maintaining a diverse landscape of organizations is not possible if we expect every organization to pursue diversity as an overriding objective. Second, while our commitment to equality does not permit us to stand idly by while a young black girl is told that she does not belong at Funtown, are there circumstances in which our commitment to equality permits accommodating a group’s message of exclusion? If we cannot distinguish between the arrant racial prejudice of the Jim Crow South and the membership policies of a Muslim student group, we risk replacing King’s vision of equality—one that aimed at broadening meaningful participation in society for those who have been shut out—with an overly formalistic conception.

Viewed against these considerations, we’re left to ask, When is discrimination wrong? Is there a difference between excluding someone because she is gay or black or female and excluding her because she refuses to affirm the immorality of homosexual conduct, the supremacy of whites, or the wisdom of patriarchy? If there is not a meaningful difference in terms of the harm to the person excluded, is there a meaningful difference in terms of the harm to the group’s shared identity posed by prohibiting such exclusions? When does discrimination justify state intervention? Most Americans agree that the state should act to limit discrimination in the provision of goods that are essential to self-sufficiency (such as employment, housing, and education), while leaving purely private groups alone (no one is clamoring for laws requiring the neighborhood bridge club to admit racial minorities). But many discriminatory groups, while not depriving anyone of essential goods, are not purely private either. A student group enjoys the resources of a state university. A religious charity seeks access to state funding in order to compete with the other charities receiving such funding. Where exactly should the line be drawn, and what values or harms help us decide that question?

We need to talk about why diversity is valuable, why equality is essential, and why discrimination is corrosive to the social fabric—and why (and when) it sometimes isn’t. Given the vitriol that marks our political discourse these days, it is tempting to sidestep these difficult conversations. But we cannot pretend that concepts—even our most cherished concepts—possess talismanic properties, as though they magically justify any project to which they are attached.

The oral arguments before the Supreme Court in CLS v. Martinez produced a few hints as to how the justices approach this complicated interaction of institutional values, associational liberty, and state power. Justice Antonin Scalia remarked that requiring CLS “to allow atheists not just to join, but to conduct Bible classes,” would be “crazy.” Justice Stephen Breyer wondered what would be wrong with the law school kicking all discriminatory groups off campus because they “just don’t want to get into this business” of figuring out whether a group discriminates on the basis of belief or status.

Perhaps the most telling hint came from Justice Anthony Kennedy, often the crucial swing vote in closely contested cases. Pointing to evidence that the law school’s policy was not applied evenhandedly to all student groups, he wondered, “Can’t we decide the case on that basis?” This would be the easiest path to a ruling, as it would allow the Court to avoid tackling the thornier issue of whether the policy itself is constitutionally problematic. Forgoing the opportunity to speak to the broader issues of this case would be unfortunate, but not surprising. Our society has been avoiding these conversations for a while now. That will not make them go away.

Robert K. Vischer is the dean and Mengler Chair in Law at the University of St. Thomas School of Law in Minneapolis.

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Published in the 2010-05-21 issue: View Contents
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