RBG’s Greatest Insight

Justice Ruth Bader Ginsburg’s time on the Court was often characterized as a pitched battle between the principles of equality and individual liberty. Conservative majorities have tended to elevate individual autonomy rights over equal treatment and equal opportunity in our politics, our workplaces, and our schools. The liberal bloc, by contrast, has tended to oppose this subversion of equality to liberty, and pushed to recuperate equality as the primary value guiding constitutional law.

Justice Ginsburg was in a camp of her own. She long grasped that these two great principles of American democracy are not at odds, but rather integral to each other. She recognized that equal opportunity is vital to self-determination, and that personal liberty is secure only insofar as society respects each of us as equals. In short, she did not fall victim to the false dichotomy of equality and liberty, but worked to advance equal liberty under law.

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A little-known but momentous case, Christian Legal Society Chapter v. Martinez, exemplifies Ginsburg’s vision of equal liberty. Decided on the second-to-last day of the blockbuster 2009–10 term—one that included major decisions about campaign finance, gun rights, and criminal justice—this case has not generally been recognized as one of Ginsburg’s seminal opinions. But it contains all the hallmarks of the justice’s brilliance. It is a steady and cautious advancement of the law, faithful to precedent and situated within a paean to civil procedure, that ultimately reconciles with deft agility the seemingly competing values of religious liberty and equal educational opportunity.

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.

This vision is apparent in many of the justice’s other decisions, animating her opinions striking down Virginia Military Institute’s all-male admissions policy and upholding independent redistricting committees. It also guided her most fiery dissents, most notably in cases involving equal voting rights and women’s equality in the workplace and in their doctor’s office.

The best jurists understand that self-actualization and communal progress are both indispensable to fulfilling the promise of a more perfect union. The truly exceptional ones, like Justice Ginsburg, lay out a constitutional framework for how to simultaneously accomplish the equality of liberty and the liberty of equality.