The case involved a public university’s policy that all officially recognized student organizations must open their membership and leadership opportunities to any student, regardless of status or belief. Pursuant to this policy, the university denied Christian Legal Society, a Christian student organization, official recognition, because the group excluded from its membership any student who did not subscribe to the sexual mores of the group’s faith, including any student who engaged in “unrepentant homosexual conduct.” CLS argued that the policy discriminated against its views in violation of its First Amendment rights to free speech, association, and religious exercise.
Writing for a five-member majority, Ginsburg flipped the discrimination argument on its head. She explained that a policy requiring equal access is “textbook viewpoint neutral,” because it does not distinguish and does not permit distinction among students or messages. With this rhetorical move, Justice Ginsburg shattered the constructed conflict between CLS’s liberty interests and the university’s equality interests, destroying the illusion that equality itself could be a form of discrimination. CLS remained at liberty to voice and practice its views, but it was wrong to confuse a discriminatory policy with an equally applied one, and to conflate its own refusal to grant equal access with the university’s refusal not to do the same. Indeed, she continued, CLS’s requested exemption from the policy was itself a request to discriminate, for any such exemption “seeks preferential, not equal, treatment.”
Furthermore, she highlighted that all students’ education, including that of CLS members, is best promoted when all participants in the educational community provide equal access to all its benefits and opportunities. In this way, her analysis harkened back to the fundamental insight of Brown v. Board of Education—that the right of each of us to achieve self-realization depends on the quality of our environment, such that we all suffer a diminution of rights in an unequal society.
Ginsburg’s decision upholding the policy under the First Amendment, therefore, ultimately upheld both CLS’s and every student’s right to both espouse their views and be treated equally. She summarized her logic poignantly in concluding that CLS’s fatal flaw was, as she quoted from Hastings’ brief, “simply confusing its own viewpoint-based objections to nondiscrimination laws (which it is entitled to have and to voice) with viewpoint discrimination.”
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Justice Ginsburg might have been writing directly to her dissenting colleagues in this passage. Indeed, in case after case, this Court’s conservative majority bloc has confused its own viewpoint-based objections to equal treatment and nondiscrimination with actual discrimination against conservative viewpoints. As a formidable and indelible civil-rights advocate, Ginsburg knew better. She knew that being antidiscriminatory is not itself discriminatory, that defending equality is not in tension with protecting individual liberty, and that fighting for equal opportunity is the best, indeed the only, way to truly secure the principles of freedom and autonomy for each of us.