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“Special Rights”


As we saw once again yesterday, conservatives on the Supreme Court are in favor of them.

I’ve made this point before, but in my experience if you bring up the idea that there’s any possible constitutional issue with the Hyde Amendment conservatives will react as if this was the nuttiest thing in the world — everyone knows that there can never be an obligation for the state to provide anything! But, of course, the Court’s conservatives are strongly committed to the idea that universities have to provide funding to religious student groups if they provide funding to any other type of group. And this is despite the fact that unlike with the Hyde Amendment these cases present an actual clash of constitutional requirements. The funding of medical services doesn’t raise any constitutional issues, but the providing state funding to religious student groups creates a dilemma where the establishment clause and free speech clauses of the First Amendment are in tension. I have no particular objection to resolving that case in favor of the latter value. Yesterday’s argument, however, where Alito asserts that religious groups are entitled to taxpayer money even if they refuse to comply with with the university’s neutral “all comers” or nondiscrimination codes*, is far weaker. And certainly gives away the “special rights” show.

*Or as Alito refers to nondiscrimination policies in the reasonable, moderate, apolitical manner for which he is justly famed, “prevailing standards of political correctness.”

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  • Fighting Words

    As a graduate of Hastings College of Law, I guess that I am happy with the decision.

    I guess the moral of the story is to not stipulate that a public school/university has an “all comers policy” if you don’t really mean it.

    Now, I agree with the outcome and I agree with what you are saying about conservatives wanting special rights for a specific religious group, but I do have one minor quibble. I don’t know if CLS wanted “taxpayer money.” As I seem to recall, a very small part of each student’s tuition went for activities/clubs/that sort of thing. I thought they wanted some of that money. Either way, there are still Establishment Clause problems and for UCH to give them funds would still violated the state’s anti-discrimination policy.

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