Philanthropic freedom, freedom of association, and CLS v. Martinez


I hope that a Porcher will react at length to today’s dispiriting, but not too surprising, Supreme Court ruling in CLS v. Martinez, which upheld a public institution’s — the University of California’s, in this case — right to exclude groups that impose “viewpoint” limits on membership. I have reacted a bit about the case over at Philanthropy Daily, where I connect it to Florida’s recently passed AB 998. That law, discussed by Naomi Schaefer Riley here, essentially blocks politically motivated interest groups from forcing foundations to engage in a preferred-minority head count — in terms of their board make-up, their staffs, and the organizations they choose to support.

Here is my take:

Critics of the law seem not to understand — or perhaps do not care — that its impact is precisely to protect philanthropic diversity. The effect of forcing all foundations to honor a highly particular, and of course ideological, definition of “diversity” would, after all, have been to make them more and more the same; at the very least, it would have forced all of them to subscribe, at least implicitly, to the same contested definition of “diversity” and its alleged benefits. In other words, the law would have made things more uniform.

As things stand, nothing impedes Florida’s — and the nation’s — private foundations from pursuing their diverse charitable goals in diverse ways and according to the diverse beliefs that animate them. And that is precisely what they do; no one who honestly examines the giving patterns, goals, and beliefs of America’s 75,000 foundations can fail to be impressed by Americans’ charitable pluralism. In other words, freedom of association — besides being an ancient, pre-political right — leads to diversity. But diversity ideologues, as we are reminded today by the Supreme Court’s decision in CLS v. Martinez, actually want uniformity. . . .

Bradford Smith, president of the Foundation Center, has weighed in with a tad more reserve. Much to his credit, he defends the principle of philanthropic freedom. At the same time, he makes much of the Center’s efforts to promote the kind of “transparency” that activists like Pina would like to see enshrined in law. Foundations’ voluntary disclosure of data pertaining to diversity, as the term is politically defined, is much preferable, I suppose, to involuntary disclosure. But if we are going to ask for such information, shouldn’t we also have an open and honest debate about what we mean by diversity, and why? And shouldn’t that discussion include those who remain skeptical as to the concept’s usefulness (not to mention its coherence), including its helpfulness precisely for those whom it allegedly is meant to serve: the poor, the marginalized, the vulnerable?

After all, following CLS v. Martinez, the “marginalized” and “vulnerable” may soon include Christians and others who cling to views unpopular with American elites. . . .

There is much fodder for reflection in the majority’s CLS ruling, starting with Ruth Bader Ginsburg’s contention that requiring all groups to take all comers is “viewpoint-neutral.” Really? One would think that Justice Ginsburg could at least see that with respect to CLS it isn’t neutral!  One could build an entire book out of discussing and destroying this self-evidently false but comforting liberal canard.

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