Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez

Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities:  “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.  One can only wonder why the Court shuts this key difference from sight.”

But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez.  In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices.  Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not?  In Martinez, it seemed to some of us that the "Court shut this key difference from sight."

For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.