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

by Jeremy Beer on June 28, 2010 · 2 comments <span>Print this article</span> Print this article

in Politics & Power,Short

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.

{ 2 comments… read them below or add one }

avatar Albert June 28, 2010 at 3:57 pm

Stanley Fish covered this topic at his NYTimes blog. One would have thought progressive liberals would have at least read it there.

I’m curious as to whether the dissenting minority was able to point out how silly the myth of viewpoint neutrality is.

avatar Roger Bennett June 29, 2010 at 9:16 pm

I can’t rise to the challenge to address CLS v. Martinez “at length,” and I confess to not having read the actual opinion yet. But there’s an interesting fact lost in all the reporting I’ve seen except for one interest group that filed an amicus brief: the case isn’t over; it was remanded for a determination of whether Hastings College of law walks and neutrally as it talks.

That could be very significant because of religious freedom law of nearly 20 years duration, specifically Employment Division v. Smith.

The rule that came out of Employment Division v. Smith and its progeny is that, in effect, religious persons and groups are not entitled by their religious beliefs to any exemption from a neutral law of general application — but the law must truly be neutral and generally applied. That requirement has real teeth in weeding out invidious discrimination in the guise of “neutral” policy.

On remand, if it’s shown that any other group at Hastings College of Law is allowed to exclude leaders who do not agree with its viewpoint, CLS should prevail. And if CLS is correct that it is (and other relatively conservative Christian groups are) being singled out because of their Christian viewpoint, it will be very hard for Hastings to hide the fact. When Hialeah Florida, for instance, tried to ban animal sacrifice (targeting the Santeria religion) while allowing kosher slaughter (accommodating observant Jews), it decisively lost.

I don’t know the facts, but don’t assume that the last chapter of this saga is yet written. I’ve heard Mr. Martinez defend the policy, and he talks a good neutral line. We’ll see soon enough whether he and Hastings walk the walk as well as they talk the talk.

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