A Question for Libertarians

How many subsidies will libertarians demand for their favorite bigots?

Justice Alito says that if the Christian Legal Society at Hastings College of Law, which discriminates against gays and lesbians, doesn’t get a subsidy from the law school, this lack of a subsidy violates its “freedom of expression.”

Do you agree?  What other government subsidies are required for freedom of expression?

So you would have voted with the majority, right?  Right?

UPDATE: Just noticed this.  Eugene Volokh says he would have voted with the liberal justices.  Good for him.  I’ll return the favor and say I probably would have voted with the conservatives in the gun case: if the Second Amendment is an individual right, then it should be applied against states and local governments.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

16 thoughts on “A Question for Libertarians”

  1. if the Second Amendment is an individual right

    And if it's not? The Court gets to rule on that too.

    From the Times:

    "Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor dissented. They said the Heller decision remained incorrect and added that they would not have extended its protections to state and local laws even had it been correctly decided."

  2. Speaking seriously for the moment, the implicit subsidy of 501(c)3 and all the related ones is (within carefully hedged limits) pretty necessary for freedom of expression. But that's all about, well, actual expression rather than action carefully tailored to make a test case.

  3. Every student organization at a university is subsidized, via the freedom to meet in university facilities and so on. So the question of whether a particular student group should be subsidized is equivalent to the question of whether freedom of association exists within universities. SCOTUS has now told us that no, it doesn't.

  4. I find Joel's remark incomprehensible. A university itself exercises freedom of association. Any freedom of association imposed by a government within a group that itself exercises freedom of association diminishes the group's freedom of association. So does Joel believe that universities may exercise freedom of association? Or just American Taliban?

  5. "I find Joel’s remark incomprehensible."

    I find Joel's remark idiotic, since the university rule allowed by the case in question specifically allows student groups to "meet in university facilities" regardless of whether they're otherwise subsidized.

  6. States can't infringe rights of association — UCSF wasn't prohibiting the organization's members from associating.

    States are allowed to subsidize student activities. With limited funds, the state must make reasonable judgements about what counts as a student activity deserving funds. Well, one might reasonably conclude, only activities that are open to all students.

    So the issue is, at what point does "not subsidizing" become tantamount to "infringing freedom of association" in a context where there are limited funds and only a limited number of groups can receive funds?

    In analogous cases, e.g., time/place/manner restrictions on access to public facilities, the rule has always been "viewpoint neutral" rules that are reasonably designed to effectuate the practical limitations of providing access. This is what the Court ruled. The dissenters appear to think that unless one prefers religion, one is discriminating against it, which is an upside down and backward if all too common way of looking at the issue these days.

  7. The 2nd A is different from all other amendments in the Bill of Rights because it explicitly acknowledges the regulatory role of the states. The most reasonable reading of the 2nd A is that it prohibits the Federal Government from regulating arms because that right is preserved to the states.

  8. Bloix —

    I'm not vehement on this and could be persuaded otherwise, but the First Amendment makes an explicit reference to Congress: "Congress shall make no law….". And we know precisely why this language was included: the Framers wanted to ensure that states could maintain their own established churches. But the first amendment was still incorporated against state and local governments by the 14th Amendment, and rightfully so. So the language in the Second Amendment I do not think is dispositive.

  9. Joe, the university in this case is a state university.

    Robert, that simply isn't the case, as the dissent made clear. In fact, from what I've read the predominant effect of denying recognition was precisely that they can't meet (or easily meet) on campus. The actual monies available for a group like CLS are insignificant in comparison.

    The CLS doesn't discriminate against gays and lesbians; it simply requires its members to affirm that they believe in traditional Christian orthodoxy.

    A question for Jonathan: If the government were to provide free television time to every non-profit organization in the country, except those which hold traditional orthodox Christian views, would that be permissible under the constitution? The obvious and easy answer is no.

    As it happens, I think that Volokh (and the Supreme Court) is right about the constitutionality of an all-comers policy, wrong about whether Hastings in fact has an all-comers policy, and wrong about the meaning of the stipulation in the case. More, Volokh is wrong in his Daily News piece when he suggests that a nondiscrimination provision treating religious beliefs differently from other ideological beliefs would be permissible under the constitution.

  10. Thomas, that may have been the dissent's argument, but it was an unbelievably weak argument. Alito essentially cites to nothing for his assertion that it's not about money. I know of nothing in the record that is credible saying that CLS was unable to meet on campus. I'd be careful to accept these assertions.

    I think you're right about the television time, but that says more about television than anything else. The government can deny tax exemptions to entitities that discriminate; that is the best analogy to this case.

  11. By the way, if the Government were to provide free television time to every non-profit in the country except those that discriminated against gays and lesbians, I think that that WOULD be constitutional under the 13th and 14th amendments. The fact that someone says, "I can be a bigot because God told me so" does not shield them from antidiscrimination laws.

  12. "Robert, that simply isn’t the case, as the dissent made clear. In fact, from what I’ve read the predominant effect of denying recognition was precisely that they can’t meet (or easily meet) on campus. "

    Well, no. The dissent did no such thing because that's just not true. RSO's had priority for scheduling on campus, but other groups have, and CLS was specifically offered, the chance to schedule events as well. What the dissent makes clear is that after Judy Chapman in her capacity as Director of Student Services had decided that because CLS bylaws violated the school's nondiscrimination policy it could not be granted recognition as an RSO, the CLS decided to harass Ms. Chapman and direct requests for meeting space directly to her–in an untimely fashion and at an exceedingly busy time of the year–even though allocating meeting space isn't part of her job description. The procedures for a non-RSO requesting meeting space don't involve direct harassment of the Director of Student Services in anticipation of establishing a test case for creating special rights for religious groups. http://www.uchastings.edu/information/room-reserv

  13. Robert, careful now, or you'll go about admitting that the dissent has it right: What we're all supposed to believe is that Judy Chapman decided that the CLS bylaws violated the school's all-comers policy. You and Jonathan are right that the assertions about the difficulty of meeting on campus absent official status are disputed, so I'll rephrase: the predominant question was about whether they had a right to meet on campus on the same terms as other student groups. There's no dispute that there's really not significant amounts of money available here. (See, for example, Outlaw's brief for a description of the benefits of official status.)

    Jonathan, I'm no longer amazed at some people's ability to stretch constitutional text, but that's really something. Let me guess: the 13th and 14th amendments, though directed against particular social practices, establish a broader anti-caste principle, and that principle establishes a caste system of religious groups, some of whom are entitled to constitutional protection and eligible to participate on equal terms with other ideological groups, and some of whom are not. Why not just say that the 13th and 14th amendment adopted your politics, and skip the arguments?

  14. I'm interested by this notion that requiring someone to sign a statement that calls out their personal behavior as an abomination doesn't constitute discrimination. Certainly puts paid to that silly notion of hostile environments.

  15. Paul, are you then of the view that, say, the pro-choice group at Hastings, whatever it's called, would be discriminating against Catholics if it, as an organization, took a position opposite the Cathoic church on an issue, or criticized the pope? Would a commnist group critical of capitalists be discriminating against capitalists by requiring its members to say that capitalists are evil?

  16. I don't see what's so terrible about Hastings' policy. Would it really hurt a Christian group to have to dialogue with a member who disagreed with its (I assume majority-voted?) stance on sexual ethics? (And please do not imagine that there is not a Christian opposition to the idea that God thinks being gay is bad. I will go there if you want, but we will argue forever and get nowhere, that I can promise you. There is no such thing as reading the Bible without interpreting it.)

    And how many people do you think would even bother to waste their time that way?

    In fact, how much tax money was wasted on this suit? It's ridiculous.

    Now, a better suit would be if someone who wasn't Latino wanted to join a Raza group, for example. There would be some fur flying. Come to think of it, I don't remember if we had a rule about that.

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