Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, July 15, 2010

The Legal Strategy of the Christian Legal Society

By Steve Shiffrin

Mike Dorf has an interesting essay at Dorf on Law speculating on the legal strategy of the Christian Legal Society in its recent Supreme Court case. Why did the lawyers stipulate to the all-comers policy in the lower courts? Why did they run away from the stipulation in the Supreme Court? Why did they distinguish between status and beliefs instead of arguing for a more absolute form of freedom of association? On the latter Mike thinks that McConnell did not want to have the Court think the group was homophobic. I am sure he didn't, but I think the larger worry was that he wanted to avoid a principle that would give racially discriminatory groups unqualified rights to equal status with other groups. I do not know if this was a necessary strategy, but I do not think it hurt his client.

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https://mirrorofjustice.blogs.com/mirrorofjustice/2010/07/the-legal-strategy-of-the-christian-legal-society.html

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Steve, I am inclined to think that it was quite unfortunate that the CLS ever stipulated to the "all comers" policy (since that was not the policy that was applied to them). But, Mike McConnell *did* argue -- even accepting the stiputlation -- that the "all comers" policy is unconstitutional. And, I think the Court should have so ruled. (Sure, the policy as applied to them was probably "even more" unconstitutional, but . . .)