Jeremy Beer previously suggested that an FPR commentator should take up the subject of the Court’s egregious finding in Christian Legal Society vs. Martinez. Perhaps it’s safe to conclude at this point that what we need among our stable is a good legal commentator. I tend to rely on the good people at “Mirror of Justice” to clarify these sorts of legal matters, and there have been some preliminary comments made by Rick Garnett and Rob Vischer. However, among the best lengthy treatments I’ve yet read is by Hadley Arkes over at First Things, who elucidates the fundamental issues that lie at the heart of the case.
Most bracing is his conclusion:
What can we expect to unfold now? The reasoning in the case may be hidden, but the effects will be manifest and they will start springing up in the land when the academic year resumes in the fall.
Over thirty years ago, in the famous Bakke case, Justice Lewis Powell held that schemes of racial preference could be constitutionally acceptable so long as colleges and universities did not focus exclusively on race as they gauged the worth of applicants. It was necessary, he said, to take race “into account” in connection with many other attributes that could make a student appealing to an office of admissions. The package of admirable traits should be “diverse,” and the aim, of course, was to produce an enrollment with a wholesome “diversity.”
Diversity then became the mantra, and as it has been played out with inventive variations while it reordered and reconfigured the academy. Now, with the decision on the Christian Legal Society, Justice Kennedy and his colleagues have put another powerful weapon in the hands of the people who rule the universities and colleges. We can expect to see, in the course of this next year, resolutions brought forth in faculty meetings to couple the standing policy on “non-discrimination” with this new policy of “all-comers”—since, as we shall hear, that policy has been sustained now by the Supreme Court.
The Court confirmed this novel policy, after all, for a public university, and if it can be installed there, it could be installed with far more freedom in a private college. But it is a policy that perfectly fits and amplifies the scheme of diversity. And once installed, that policy provides the lever for finally driving Christian groups from the life of the college. The scene is in place now to have gay activists seek to become officers in these groups, as they have at Tufts and other schools. Indeed, that has been the test of choice, used in challenging the Christian groups and bringing the complaints that threaten their standing in their colleges.
I think Arkes is correct that this will become a widely employed strategy by liberals in universities – and other institutions – throughout the country, and could eventually be used as a wedge by which to break open all associations, public or private. As Jeremy pointed out, the aim of the “diversity agenda” is to eviscerate actual diversity. At the heart of liberalism – from its inception in the theories of Hobbes and Locke – was a hostility to any groups or associations that limit the purported natural autonomy of individuals. The logic of liberalism is the evisceration of associations in the name of the individual, achieved by means of the centralizing power of the State. Eventually the boundaries of the State itself are understood to be unjustifiably limited and arbitrary, leading liberalism to the ultimate logic that the autonomous individual can only be truly liberated within the context of the global State. Given that the scale of the nation-state already goes beyond what is reasonably governable, there’s little reason left to oppose a global State other than residual and altogether unjustified grounds of cultural identity (this was the crux of the question faced by the European Union whether to include Turkey. Their reluctance was a sign to many progressive liberals that redoubled efforts were needed to overcome anachronistic devotions to cultures and traditions).
The frontispiece of the Leviathan remains instructive: the State is the only real “individual”; individuals exist within the state, but undifferentiated by group and association. They “make up” the State, and are wholly defined by its existence and boundaries. The State controls the secular power and governs the Church alike, wielding the sword and the crozier ambidextrously and to the same end – human power and dominion. We daily inhabit the world that was imagined and recommended by the materialist and reductionist mind of Hobbes.
In fine, CLS vs. Martinez will foster a number of discrete efforts to crack open existing “exclusive” associations that do not advance the liberal agenda. But this is merely part of a larger 500 year effort to emancipate the individual from the associations that are the fundamental basis of human society, and the true alternative to the Leviathan State. While occasionally and momentarily thwarted (as with the narrow passage of Proposition 8, which now is suddenly regarded as unconstitutional by its opponents who would otherwise have been happy with it had it passed electoral muster), the efforts of the liberal agenda toward eviscerating the component elements of civil society – family, church, associations, neighborhood, States, region, and any other “arbitrary” grouping of humans – will relentlessly continue. We are mistaken if we understand these efforts to be anything other than motivated by one central mission – the displacement of all human association except those that comport with individual autonomy combined with global statism. It is a nightmare beyond all describing, and one toward which we are accelerating with seeming relentless inevitability.