The Daily Dose–of Ignorance, That Is

At the Daily Kos, anonymous lefties who generally have no idea what they’re talking about like to smear better men and women than themselves. This time their target is Michael McConnell, the former judge of the 10th Circuit Court of Appeals and now law professor at Stanford who is generally regarded as America’s foremost expert on constitutional issues relating to religion.
On Monday, McConnell argued a case called Christian Legal Society v. Martinez in the United States Supreme Court. His client, a Christian organization at the University of California’s Hastings College of Law, was subject to a law school policy that required it, in order to avail itself of law school facilities, to accept “all comers” as members of the organization–whether they are Christians or not. The CLS believes that this requirement violates its members’ First Amendment right to freedom of association.
McConnell argued that under Supreme Court precedents, a public agency like the University of California can ban discrimination based on status (e.g. race or gender), but not based on belief, since in many cases the whole point of freedom of association is to band together with those who share one’s beliefs. As is often the case in Supreme Court arguments, the justices pelted both lawyers with hypothetical questions, sometimes involving rather far-fetched scenarios. At one point Justice Stevens asked this question:

JUSTICE STEVENS: What if the belief is that African Americans are inferior?
MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status.

Nina Totenberg of National Public Radio reported on the Supreme Court argument, quoted Justice Stevens’ question and paraphrased McConnell’s answer:

Justice John Paul Stevens followed up: “What if the belief is that African-Americans are inferior?”
If belief is the basis for exclusion, then that is permissible, said McConnell. But exclusion based on status is not.

This set off one of the anonymous lefties at the Daily Dose, who implicitly accused McConnell and his clients of racism:

Yesterdays arguments, during which the CLS lawyers championed the idea that religious beliefs entitled believers to ignore the rights of others, saw some (sad but expected) support for the idea from Chief Justice John Roberts and Justice Samuel Alito. However, the most astonishing exchange of the day may have been this bit involving Justice Sotomayor and Justice Stevens [quoting Totenberg’s report]:

CLS lawyer Michael McConnell opened by telling the court that Hastings’ all-comers policy is a “frontal assault on freedom of association” and “the right to form around shared beliefs.”
Justice Sonia Sotomayor asked: So what if a group “wanted to exclude all black people, all women, all handicapped persons?” Are you saying the school would have to “give it funds and otherwise lend it space?”
“Not at all,” McConnell responded. There is a difference between discrimination based on belief and discrimination based on status, he said. “We have only challenged the beliefs, not status.”
Justice John Paul Stevens followed up: “What if the belief is that African-Americans are inferior?”
If belief is the basis for exclusion, then that is permissible, said McConnell.

See. You if you can’t discriminate because of any reason, but you can still discriminate if you think people are inferior. That makes… no kind of sense at all. Personally I believe that the CLS is full to the top with un-Christian BS.

As David French pointed out, the Kossite conveniently omitted the next sentence of Totenberg’s report: “But exclusion based on status is not.” Beyond that, it is obvious that he didn’t take the trouble to read the transcript of the argument itself, which is easily accessible. The transcript repeatedly negates any suggestion that the Christian group’s position somehow enabled discrimination based on race or other protected status “if you think people are inferior.” For example:

JUSTICE GINSBURG: Mr. McConnell, let’s say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that’s based on their fundamental belief that that’s what the Bible instructs. On your view, must Hastings give this organization status as a recognized student organization?
MR. McCONNELL: No, Justice Ginsburg. Our position is it is unconstitutional to — to prohibit groups to form around beliefs but not around status.
JUSTICE GINSBURG: But the belief is — this is the belief.
MR. McCONNELL: They can insist that — that everyone who participates in the group have that belief, and that, as Justice Scalia said, may mean it’s going to be a very small group. But they cannot discriminate on the basis of status. But belief — as this Court said in Cantwell v. Connecticut, belief, the freedom to believe, is absolute.
JUSTICE GINSBURG: So, they — would have to negate their belief in their practice. They could believe this, but they couldn’t implement it?
MR. McCONNELL: Well, it’s not unusual to say people — people can believe in all kinds of things that are illegal. That doesn’t mean that they can do them. It’s in our law…. it’s not an unfamiliar distinction.

Counsel for the law school specifically acknowledged that McConnell and the Christian Legal Society were not arguing for a right to discriminate based on a protected status. Justice Roberts followed up by making the distinction crystal clear:

MR. GARRE: Your Honor, I think even my friend recognizes that a group could not exclude an individual on the basis of their gender or their beliefs — on the basis of their gender or race. Remember the Bob Jones case —
CHIEF JUSTICE ROBERTS: But that’s because gender or race is fundamentally different from religious [belief]. Gender and race is a status. Religious belief, it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we have always regarded that as a good thing. That type of exclusion is supported in – in the Constitution. The other types of exclusion are not.

Actually, there was a party to the case that took a position that can fairly be labeled absurd, but it wasn’t the Christian Legal Society. It was the University of California, which argued that California law requires Christian student groups to accept atheists as members and allow atheists to lead Christian services:

CHIEF JUSTICE ROBERTS: In your response to Justice Ginsburg concerning California law, is it your position that California law requires religious groups to admit people who do not believe in their religious beliefs and in fact to conduct services of that group?
MR. GARRE: Your Honor, our position is that the provision that we’ve cited to, 66270, does not carve out an exemption in this program for religious student organization. On its face –
CHIEF JUSTICE ROBERTS: So the answer to my question is “yes.”
MR. GARRE: Yes. …

These days, the Left’s favorite tactic is to smear conservatives with unfounded allegations of racism. This is just one more in a long series of such drive-by accusations.
It is said that the rain falls alike on the just and the unjust. It is likewise true that the internet enables equally the wise and the foolish. You should keep this in mind if you’re ever tempted to visit sites like the Daily Dose.


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