Vischer on the CLS case

Rob has an excellent essay on the CLS case ("Diversity and Discrimination in the Case of the Christian Legal Society") up at Public Discourse.  He writes (among other things) that:

Put simply, the case is a lesson in the legal norms surrounding dangerously amorphous concepts such as “diversity” and “discrimination,” and is an example of how those concepts can contribute to a robust, thick conception of the common good . . . or not. There are central questions that do not even appear to be on the radar screens of universities, courts, or other decision-makers that are shaping the course of these conversations: Is “discrimination” always bad? If diversity is an important value in our society, where does associational diversity rank? Does our framework of liberty include the right to exclude? The factual history and legal analysis of Martinez leave us to wonder whether we even have the resources and inclinations as a society to engage these questions, much less to draw meaningful distinctions among types of discrimination.

Standing up for associational freedom need not crowd out the legitimate place that anti-discrimination norms hold in a society that has admirably labored to remedy past injustices toward, and continuing marginalization of, certain segments of society—including gays and lesbians. At the same time, anti-discrimination norms can corrode the core beliefs that animate associational life.  . . .

Our struggle to define and demarcate “discrimination,” to identify the sort of diversity that is conducive to a vibrant, participatory, and just society, and to figure out how formal legal norms can support these projects is primarily a political inquiry, not a constitutional one. The Martinez Court’s holding has pushed the constitutional dimension further from view, and the Court prudently recognized that its decision is not the final word, explicitly cautioning against confusing the advisability of the law school’s policy with its constitutional permissibility. The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

J'agree.