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Source link: http://archive.mises.org/13098/free-association-requires-state-sanction/

Free Association Requires State Sanction?

June 28, 2010 by

The final day of the Supreme Court’s term produced some flashy but ultimately marginal decisions. I’ll address most of today’s cases later in the week, but I wanted to take note here of Christian Legal Society v. Martinez, a decision that has some establishment libertarians crying foul, including Cato Institute scholar Roger Pilon:

Dissenting today in Christian Legal Society v. Martinez, Justice Samuel Alito put his finger on the majority’s underlying principle: there shall be “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” That pretty much says it all.

This case arose after the Hastings College of Law, a large public law school in San Francisco, denied the school’s tiny Christian Legal Society the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, discriminated against CLS, which was simply exercising its speech, religious, and associational rights. Cato filed an amicus brief in the case, written by the University of Chicago’s Richard A. Epstein, supporting the CLS students’ right to freedom of association.

But it was not to be. Justice Ruth Bader Ginsburg, writing for the Court’s three other liberals plus Justice Anthony Kennedy, held that the school’s “all comers” policy, which requires that student organizations accept anyone as members and even as officers, is “constitutionally reasonable,” taking into account all of the surrounding circumstances. That is a new standard for constitutionality when it comes to fundamental rights. And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.

The mugger analogy is comically off-base. A mugger seizes property through the threat of aggression. Hastings simply declined to grant special benefits to an organization that held views contrary to the school’s. There was no aggression and no violation of individual rights.

Pilon erroneously refers to “the CLS students’ right to freedom of association.” Yet this case had nothing to do with rights — at least from a libertarian perspective. There is no “right” to receive recognition, funding, or other benefits from a state institution.

Nothing prohibits the members of the Christian Legal Society from freely assembling, speaking, or acting. Nothing entitles them to state recognition or support for their activities either. And honestly, libertarian groups should not be in the business of encouraging people to seek such state recognition or support; this only undermines the libertarian argument.

Unfortunately, there’s a cottage industry within establishment libertarianism that encourages college students to think of themselves as victims. There’s an entire organization — the misleadingly named Foundation for Individual Rights in Education (FIRE) — devoted to just this purpose. Rather then promoting voluntary action outside the structures of the state (and its wretched university system), FIRE, Cato, and the like preach an entitlement mentality: the state must facilitate the exercise of your rights!

Cases like CLS also over-emphasize the importance of universities and their “official” sanction. In an age when anyone can publish, speak, and associate through informal, web-based channels, why bother “registering” with a university bureaucracy to obtain limited, heavily restricted “benefits”? Perhaps this sort of thing still resonates with formal institutions like Cato and FIRE, but I fail to see the value.

{ 16 comments }

Abhilash Nambiar June 28, 2010 at 1:40 pm

This is only one of the major decisions the Supreme Court made today. The other was the overturning of Chicago’s ban on firearms.

scineram June 28, 2010 at 2:33 pm

Yes, Thomas even ditched substantial due process bs. He went for privileges and immunities.

Bogart June 28, 2010 at 2:46 pm

This is all awful and anti-freedom. I was reading the text and the first thing that leaped out at my developing ant-liberty sixth sense was the term “PUBLIC LAW SCHOOL”. When something is “public” that really means that a political process chooses the cabal of people who have the private property rights over that something. And when ownership is uncertain then you have insane conflicts over those property rights. The insanity is only amplified because the Supreme Court in this case has no belief in private property rights either. In this case I would argue this group CLS certainly has no right for the school to recognize them and it is all diatribe for the Supreme Court to have to explain why not when it can not use property rights as the property has no legitimate owner. Had there been a legitimate owner then the whole exercise would be pointless as it would be up to the owner to recognize the group.

Seattle June 28, 2010 at 2:49 pm

I think FIRE is very appropriately named. It takes everything worth having and burns it to unrecognizable ashes.

pussum207 June 28, 2010 at 3:45 pm

Good piece, Skip.

Jonah June 28, 2010 at 6:40 pm

Sorry, but I’ll have to disagree, even though I’m not very sure of understanding the whole thing.
I know that no organization is entitled to be recognized by private institutions, but in the case of state institutions there should be different. As long as they exist, which is not the best scenario, they should respect the equality before the law principle.
This is not a private institution exercising it property rights, but a state institution censoring arbitrarily an organization.

Todd S. June 28, 2010 at 7:30 pm

I think the point was that this in no way infringes on their freedom of assembly. They can come together all they want. The school not officially recognizing them does not prohibit them from that. It just means they can’t get funding from the school, which is probably better for them in the long run anyway.

Jonah June 28, 2010 at 7:41 pm

I get your point, but if every other organization is getting funding from the school (which is a state school) why they can’t? I see it as similar as gay marriage issue: I want to ‘privatize marriage’, but as long as it is under government control I expect equality before the law by recognizing every couple’s wish to get married.

S.M. Oliva June 28, 2010 at 8:26 pm

And do you think gay couples will support getting the government out of marriage once they’re receiving state benefits?

That’s the flaw with your argument. The more people who become dependent upon the government’s sanction, the less likely people will oppose the sanctioning body. “Equality” supersedes individual rights.

PK June 29, 2010 at 8:23 am

IF CLS just had an open admittance policy; this would be a non-issue. Are you more offended that the group was disallowed based on some governance that the school decides or the fact that it was a CHRISTIAN group not being allowed to form?

Beefcake the Mighty June 28, 2010 at 7:51 pm

“As long as they exist, which is not the best scenario, they should respect the equality before the law principle.”

Why, exactly? Why is equality before the law a principle libertarians should support?

tralphkays June 28, 2010 at 8:31 pm

Excellent question!

Beefcake the Mighty June 28, 2010 at 8:58 pm

T Ralph, good to have you back here. You missed a pretty animated discussion on free banking last month.

tralphkays June 29, 2010 at 12:28 am

I saw that discussion, I remember a few cogent arguments being made, yours were top notch as usual. (I actually search for comments by a few people particularly, your name is at the top of the list) Honestly I found the discussion as a whole unbearably depressing, the phrase “everyone is entitled to their opinion” has finally reduced us to this sad state.

Jonah June 28, 2010 at 9:55 pm

Libertarians should support equiality before the law because it’s basic to assure that no one is getting any benefit from the use of force, if government steals from Paul to give to Pete then there’s no equality before the law, if any sector gets subsidies or tariffs, then there’s no equality before the law.
Would you rather live in a society where is equality before the law respected or where government benefits determined groups? Anarchist order is not an option, right now.

Concerning the CLS case, maybe it’s not the same as gay marriage (where no other’s rights are violated if it was legalized), because it involves funding. But as long as they are only claiming for recognition, I can’t see any problem.

(Btw, here you can find a good case for gay marriage http://www.stephankinsella.com/2009/06/24/the-libertarian-case-for-gay-marriage/)

Beefcake the Mighty June 29, 2010 at 8:12 am

“Would you rather live in a society where is equality before the law respected or where government benefits determined groups? ”

Well, quite obviously the relevant question is, what kinds of laws are you proposing equality before (and not equality before the law as such)?

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