Good News From the Supreme Court- Barely

Of course, with one more “originalist” judge just calling balls and strikes, there might have been a different outcome:

A public law school did not violate the First Amendment by withdrawing recognition from a Christian student group that excluded gay and lesbian students, the Supreme Court ruled on Monday in a 5-to-4 decision.

The case, involving a clash between religious freedom and anti-discrimination principles, divided along familiar ideological lines, with the court’s four more liberal members and Justice Anthony M. Kennedy in the majority.

Justice Ruth Bader Ginsburg, writing for the majority, said that it was constitutionally permissible for public institutions of higher education to require recognized student groups to accept all students who wished to participate in them.

Justice Samuel A. Alito Jr., writing for the four dissenters, said the decision represented a triumph for the principle that there is “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

What this basically boils down to is Alito thinks it is a strike against religious freedom if a public school decides it doesn’t want to fund student groups that exclude or attack other students. Political correctness run amok, I know!

But that’s originalism for you- as we all know, Washington and Jefferson and the rest of the founding fathers were big on state funding of school groups that had “God hates fags” as their mission statement (and that isn’t what the CLS was doing, as they actually just wanted special rights that allowed them to ignore the rules everyone else has to follow in order to receive funding. Alito, however, would be fine with either, it appears).

Edited for clarity.

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55 replies
  1. 1
    Joel says:

    Alito is one self-righteous hypocritical douchebag.

  2. 2
    Unabogie says:

    Balls and strikes, John. Balls and strikes.

  3. 3
    Amanda in the South Bay says:

    But that’s originalism for you- as we all know, Washington and Jefferson and the rest of the founding fathers were big on state funding of school groups that had “God hates fags” as their mission statement.

    You must have learned that at Liberty University’s law school.

  4. 4
    Mike Kay says:

    All the Thurgood Marshall bashing = coded race baiting.

    I wonder if the “liberals” who based the fuck outta Kagen, even calling her a winger, have any remorse after today’s gop gang rape.

  5. 5
    Mike Kay says:

    should read: “who bashed the fuck outta kagen”

  6. 6

    It is slightly heartening that Kennedy, every once in a while, crawls out of the right wing originalist sewer to make an enlightened vote. I bet Alito and Scalia are busy building a more better voodoo doll to make sure it doesn’t happen again, or very often.

  7. 7
    freelancer says:

    You’re seeing this all wrong, JC. They exclude them because they love them. Just like the people who enacted Jim Crow laws were acting in the best interest of Southern Blacks.

    Though I can see a practical reason for this motive, the removal of temptation.

    If you let openly gay men and women join a group of people who gather together for the primary purpose of opposing the gays, you’re gonna end up with one huge closeted gay orgy on your hands, wetsuits not optional.

  8. 8
    batgirl says:

    I love right-wingers. Public funding for a legal medical procedure, abortion, should not be allowed because that would hurt their fee fees but public funding for hating teh gays should be required because “freedom of association!”

    Of course no one is denying them their right to freedom of association, they are only requiring that if they want money and official recognition from a public institution that they follow the rules like everyone else. No special rights! Isn’t that the right’s calling card?

  9. 9
    jl says:

    It is my understanding that the Supreme Court also, in another act of careful judicial conservatism (as opposed to rash activism) extended *a particular interpretation* the second amendment to state and local governments, upsetting over 100 years of precedent.

    Amirite, or not?

    If so,

    Next time I’m watching a old western and the sheriff tells the cowhands, prospectors, local outlaw gang and/or vigilance committee that they have to check their guns at the jail before they go bar hopping down Main Street, I will jump up and exclaim that said sheriff is totalitarian thug issuing unconstitutional and oppressive orders.

    The deputy should should him.

    BTW, I think an argument can be made that some urban gun control laws are too strict. When I lived near South Central LA I knew a number of racial minority locals wanted a gun, and always had a gun regardless of the law, in the house, because their neighborhood was not safe. But isn’t the ruling today on the second amendment judicial activism plain and simple? From what I read the majority said “14th amendment, so states have to observe second, and second says that individuals have right to possess conveniently accessible and usable guns” Or did I misunderstand?

  10. 10
    Jackmormon says:

    “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

    That is an amazing bit of overt toolishness. I had expected the conservative bloc to be more subtle.

  11. 11
    beltane says:

    But I think there was another ruling today which would make it legal for all students concerned to carry loaded semi-automatic rifles into the student lounge. This would make it easier to settle the dispute in a manly, old-fashioned kind of way. A gays vs. Christianists campus war would make for very entertaining reality TV.

  12. 12
    The Populist says:

    Alito sounds like a biased asshole politician than a jurist. How is he not an activist again? Please, righties let me know…

  13. 13
    The Populist says:

    @Jackmormon:

    He sounds like the politicians he takes his marching orders from. It’s sad that all of this precedent will be overturned in no time.

    Interesting. Now we all know why the right are pissed that Obama is president. They wanted to stack the court and who is willing to bet that they’d be fine with losing elections as long as the supremes are in their favor?

  14. 14
    Nylund says:

    So, let me get this straight, the GOP’s basic stance on Government spending is that its the worst thing ever, except if used to discriminate against gay people. Then its not only OK, but a horrible crime to NOT spend.

  15. 15
    geg6 says:

    I so love this ruling that I could kiss it. There is a club on campus that is fully recognized called, literally, the Jesus Club. I want to know what their constitution says. And I wonder if the GLBT organization has any Christian members who want to join. I also wonder if the Faculty and Staff Bible Study Group (for which our staff assistant is given an hour a week to attend without docking her vacation time) will now accept an atheist like me to join.

    Food for thought.

  16. 16
    sal says:

    Didn’t these same dissenters rule that a student could be suspended for wearing a t shirt that said “Bong hits for Jesus”? Even though the student was 18 and not at a school function?
    Strict construction my ass. Or theirs, since that’s where they appear to pull their opinions out of.

  17. 17
    kay says:

    @The Populist:

    who is willing to bet that they’d be fine with losing elections as long as the supremes are in their favor?

    I’d take that bet. The Supreme Court is the Holy Grail for conservatives, and they don’t even see the disconnect there.
    I’m still slightly sick to my stomach over the out-right hero worship of John Roberts. He was the smartest lawyer ever, on the face of the planet, and then came Alito, who was smarter still.
    Media were running out of superlatives. It was absolutely disgusting. For people who rant incessantly about “black robed tyrants” they grovel at the feet of their judges, and elevate them to this ridiculous “never, ever wrong” standard.
    At heart, they’re all authoritarians. They want a firm hand and a ruling.

  18. 18
    kdaug says:

    Suh-weet! If y’all need me, I’ll be hanging out by the airport with my Stinger missile.

    Seriously, even here in fucking Texas you can’t take a gun into a bar or a courtroom. (Church, sure, but that’s another issue). I mean, define “arms”. I’m good to go with an M1A1? A little suitcase nuke? What’s the line between “arms” and “WMD”? Sure could do some mass destruction with AK in a shopping mall. Those Beltway snipers sure did some mass destruction with their little plink gun.

    I get the concept – hell, I have a plink gun of my own – but I’d like to get a solid definition of “arms”.

    Please.

  19. 19
    Calouste says:

    So why do we bother with the whole theatre of having nine Justices on the Supreme Court when we could just ask Kennedy what he thinks? Has there been a decision in the last decade or so where Kennedy was in the minority?

  20. 20
    Mnemosyne says:

    @batgirl:

    No special rights! Isn’t that the right’s calling card?

    Don’t forget, the rights that straight white men have from birth are only “special rights” when anyone else tries to claim the same rights.

  21. 21
    Chyron HR says:

    Justice Samuel A. Alito Jr., writing for the four dissenters, said the decision represented a triumph for the principle that there is “no freedom for expression that offends prevailing standards of political correctness”

    The Tea “Don’t Call us Teabaggers” Party and Sarah “Don’t Call My Retard a Retard you Retard” Palin must be thrilled.

  22. 22
    Just Some Fuckhead says:

    Did the SC tackle the intractable issue about why someone would want to join a bigoted Christian student group in the first place? Because until we figure that out, this shit is gonna keep happening.

  23. 23
    Kirk Spencer says:

    @jl: Not completely.

    Putting it simplistically, what they said was, “Heller applies to states and municipalities, too.”

    Heller (and this decision) specifically noted that government can restrict carry on streets, and can restrict some people from owning for a variety of valid reasons (felons and insane come to mind but there were more.) What both say, however, is that blanket denial of handguns is not permissible.

    Since you raised it, I’ll mention a couple of places in McDonald (the gun decision) that the gun folk lost.

    Point one is that they wanted the decision based on Article 4 section 2, “Privileges and immunities.” That can of worms was shut down hard by almost all the justices during oral arguments. Thus reciprocity of carry rules (to name on example) is dependent on states’ decisions, not mandated as a federal issue.

    Point two is that this is handguns, not all firearms, and it’s strictly self defense at home, not everywhere. Now some of the basis of discussion in Alito’s opinion may give credence for long arms later, but I’ll emphasize that word “may”. Basically, it applies only if self-defense is moved out of the home.

    Bottom line: the courts decided that states cannot emplace a de facto total ban on bearing arms.

  24. 24
    kay says:

    @Chyron HR:

    That was original. “Political correctness”. Did he hear that on Rush on his way in to work? That’ll hold up well, 100 years from now. I’m not sure what it means, and I’ve heard it 50 million times.
    He’s brilliant, you know.
    He may be smarter than Justice Roberts, if that is even possible.

  25. 25
    Kirk Spencer says:

    @kdaug: Tennessee allows more guns in bars. New law, passed just a couple of weeks ago.

    HB0962/SB1127. The key portion from the summary:

    This bill adds another exemption to the prohibition against carrying a firearm where alcoholic beverages are served for on premises consumption for any person who meets the following conditions:

    (1) The person has a handgun carry permit;
    (2) The person is not consuming any alcoholic beverage; and
    (3) The person is in an establishment that is open to the public, serves alcoholic beverages, wine or beer and is not an establishment that restricts admission to persons who are age 21 years or older by checking patrons’ identifications.

    Note this is adding to carry by law enforcement (on duty) and by the owner and owner’s agents (bouncers, etc).

  26. 26
    kdaug says:

    @Kirk Spencer: Concealed carry?

  27. 27
    jl says:

    @Kirk Spencer: Thanks for explaining the details. But, I heard on a news report that this was an explicit extension of some rights under second amendment to states based on 14th amendment? Was that report wrong?

  28. 28
    Gremcat says:

    I really miss Sandra Day O’Connor.

  29. 29
    WereBear says:

    @Kirk Spencer: And just what is this in aid of?

    When I’m looking for a good time, packing heat and strolling around a bar where others are drinking… just doesn’t occur to me.

  30. 30
    burnspbesq says:

    @beltane:

    “A gays vs. Christianists campus war would make for very entertaining reality TV.”

    Umm, you do know where Hastings is located, I presume. The Christianists would likely be outnumbered and outgunned – especially if the townies decide to get involved.

  31. 31
    fucen tarmal says:

    @Just Some Fuckhead:

    those purity rings have gold, and you can sell gold for cash now! i said CASH for gold.

    the kind of CASH that comes in handy, when you need to travel out of state for an abortion.

    of course if your gay that is far less often a consideration.

    but since we hate gays, love guns, but won’t let the gays into the military to play with the guns because….

    i guess that would mean you could only half hate them, the only thing that makes sense is for them to roll with the fundies.

  32. 32
    NobodySpecial says:

    You seen the REST of their decisions this week? If that’s Stevens pulling Kennedy to the left, I don’t want to see what they do if he starts tacking right.

  33. 33
    Kirk Spencer says:

    kdaug@26, yep. Tennessee carry permit is a conceal carry permit.

    jl@27, Devil in the details. The basis for forcing the states to obey is the 14th amendment’s due process clause. If you want a long lecture I’m game, but the short version is that over the past few decades the courts have been ‘incorporating’ the bill of rights into the 14th amendment umbrella. VERY simplistically, “States should not be allowed to deny or water down rights guaranteed at the federal level.” Heller’s basic principle applies, but via a different specific mechanism.

    WereBear@28 I haven’t figured it out, myself, and I listened to some of the arguments. They just made no sense.

    But they overrode the governor’s veto, so it’s on the books.

  34. 34
    Mark S. says:

    @jl:

    It’s a question of incorporation. If Heller was correctly decided, than this case was correctly decided. From what I’ve read, the dissenters still think Heller was wrong and said so.

    Our brave originalists have given lower courts no real guidelines on how to apply these cases except that a total ban on handguns is unconstitutional. This is gonna be litigated for a long fucking time.

  35. 35
    Just Some Fuckhead says:

    @WereBear:

    When I’m looking for a good time, packing heat and strolling around a bar where others are drinking… just doesn’t occur to me.

    Please review my excellent comment series on Solving Every Day Problems with Gun Violence.

    While it doesn’t seem practical to carry a gun around in a place designed specifically to impair judgment, fact is, a gun can be a very handy tool in a number of situations without even shooting anyone intentionally:

    1. Bar Brawl. Everyone knows the easiest way to end a bar brawl is to simply fire a shot straight up into the air, causing the huge chandelier to drop onto four to seven bad guys, instantly disabling them.

    2. Bottle Opener. The trigger guard on most standard issue pistols can be used as a bottle opener for those unfortunate times when you’ve got an achy cavity and can’t open it with your teeth. (Protip: put the safety lock on first- Don’t learn your lesson the hard way like I did with my first wife!)

    3. Chick Bait. Nothing screams “Confident Heterosexual” like a balding, paunchy middle-aged man with a strap on.. holster sporting an over-sized shiny pistol. Just typing this caused me to inadvertently lick my thumb and circle my right nipple several times in a seductive manner. But that aside, science has proven that all women are looking for a man who knows how to protect them by stopping a bar brawl with a cool chandelier trick shot.

  36. 36
    Malovich says:

    @Just Some Fuckhead : lol

    Freedom of Speech is not the freedom to write law and should not be an excuse to enforce discriminatory policies marginalizing any group.

    The Christian fellowship is not discriminated against with the University’s policy- it applies to everyone equally and fairly. The Christian fellowship can say what they like about LGBT’s, but they cannot exclude them, only debate the points of morality on their own merits.

    The Christian fellowship was discriminating against the LGBT community with their exclusion policy, and that is not a matter of Free Speech. They can say what they want, but they are accountable for their actions.

  37. 37
    Sly says:

    @Mark S.:

    Our brave originalists have given lower courts no real guidelines on how to apply these cases except that a total ban on handguns is unconstitutional. This is gonna be litigated for a long fucking time.

    In his dissent, Breyer went so far as to call an effective interpretation of this ruling among lower court judges “mission-almost-impossible.” I think that might be one word too long.

    Alito didn’t even put in place any standards through which the Seventh Circuit could review the law in question. “We’re not saying this law is unconstitutional, but blanket gun bans for home safety are. Whether or not this law rises to this standard is something you guys should figure out on your own.”

    I’m beginning to think he’s a bigger ideological activist than Thomas, and thats saying something.

  38. 38
    MikeBoyScout says:

    In the not too distant future appointees to the SCOUTS will not be judged on their previous judicial experience, or the value of their law school sheepskin.

    No, in our future, Justices on our Supreme Court will be celebrity spiritualists channeling the Founding Fathers with crystal balls and Ouija boards and séances. And the members of the court will be available to all of us 7×24 for only $2.99/minute via a toll free number.

  39. 39
    Adam Collyer says:

    This was the oral argument I attended. Obviously, my mere presence at the Court was so moving for Justice Kennedy that he leaned left on this go-’round.

    You can thank me later. Cash only.

  40. 40
    Walker says:

    I just want to know if the conservative 4 really thought their stance through in offering the dissenting opinion. If this had passed what would have prevented a white supremist group from demanding (and hence gaining) official university endorsement. Or what if I were to create the “me” club that discriminates against everyone but me, and demand university funding for social events involving me.

  41. 41
    MikeBoyScout says:

    @40 Walker:
    Thinking?
    The important question our Fab Four address in every case is What would Father do?

  42. 42
    JCT says:

    My lord, I am just holding my head imagining what would have happened to this country if McCain and the quitter had been elected — freaking hell, the mind reels at the type of SCOTUS nominations we would have instead of Sotomayor and Kagan.

    I wish some of the pissed-off progressives spent more time imagining that scenario.

  43. 43
    Honus says:

    @Kirk Spencer: and that right to self-defense in the home is right there in the second amendment, and all over the constitution. I mean, there are dozens of references to self-defense in there, right? Because that was the original intent and all; conservative judges just wouldn’t find non-existent rights in the constitution like the right to privacy or something.
    The whole thing is flawed from Heller on down.

  44. 44
    daveNYC says:

    @JCT: Oh I do, and it’s not even funny what the rulings would look like. I just assume that they’d gut every amendment except the second.

  45. 45
    Sloegin says:

    So… if someone wants to attend a Supremes oral argument, they can pack heat when they go?

    Methinks they really didn’t think this one through too well.

  46. 46
    Kyle says:

    “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

    The situation involves groups funded and recognized by the institution, and Alito knows this. I guess rightard ‘expression’ now includes ‘you pay for me to say I hate you’. He’s as mendacious as Rush Limbaugh, playing to the mouth-breathers. Scalia has some (very rare) flashes of actual principles, but Alito’s entire selfish judicial ‘philosophy’ is banning stuff he hates, and allowing stuff he likes, and making up justifications afterward. Truly in the mold of Rove and Bush.

  47. 47
    Bootlegger says:

    I can’t wait to beat an intruder over the head with a baseball bat, and get charged because I didn’t use a gun.

  48. 48
    Bootlegger says:

    @Sloegin: No, they said “reasonable” exceptions, and obviously that wouldn’t be “reasonable”.

  49. 49
    Sloegin says:

    @Bootlegger: “You keep using that word. I do not think it means what you think it means.”

    Certainly not in this political era anyway…

  50. 50
    burnspbesq says:

    @Walker:

    I think you may have proven the converse of what you set out to prove.

  51. 51
    asiangrrlMN says:

    I don’t know how difficult it is to understand that the Jesus Club can do whatever the fuck they want, on campus, even, but they won’t get any money for being hateful bigots. Good lord. Jesus (the real one, if he existed) wept.

    As for Alito, he’s repulsive.

    As for bars and guns, some bartender on The Daily Show said, before the bill passed, if it happens, then he’s getting out of the bar biz and into the mortuary biz.

  52. 52
    handy says:

    @asiangrrlMN:

    They’re just making it up as they go along. Sal upthread already mentioned the bong hits case (I guess freedom of speech only applies when Jesus is portrayed as a bigot). I’m particularly thinking of the Robert Maplethorpe controversy from 20 years ago, where the Right insisted that denying funding to the NEA was not about freedom of speech–which to me is pretty much in principle the opposite argument Alito et al made here.

  53. 53
    DecidedFenceSitter says:

    @Calouste:

    So why do we bother with the whole theatre of having nine Justices on the Supreme Court when we could just ask Kennedy what he thinks? Has there been a decision in the last decade or so where Kennedy was in the minority?

    Well from Wikipedia:

    Kennedy has reliably issued conservative rulings during most of his tenure, having voted with William Rehnquist as often as any other justice from 1992 to the end of the Rehnquist Court in 2005.[30] In his first term on the court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice. […]Especially after 2005, when Sandra Day O’Connor, who had previously been known as the court’s “swing vote”, retired, Kennedy began to get that title for himself. Kennedy is more conservative than former Justice O’Connor was on issues of race, religion, and abortion, and intensely dislikes being labeled a “swing vote”
    __
    On the Roberts Court, Justice Kennedy often decides the outcome of a case. In the 2008-2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, 5.

  54. 54
    debbie says:

    Aren’t the people who think it’s okay for this Christian student group to discriminate the very same ones who object to Kagan’s “discrimination” against ROTC at Harvard?

  55. 55
    Nancy Irving says:

    It’s disingenuous for the conservative bloc to claim that this is a free speech issue.

    By this standard, lunchrooms in the South were just exercising their free speech rights when they refused to serve blacks.

    Excluding people on the basis of their membership in a group may imply speech (“I don’t like you!”) but it is much more than a speech act. And it is the behavior–the excluding, not the speech act, that is being rightly prohibited.

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