The case of Christian Legal Society and the Hastings Law School tested whether Christian groups can exclude non-Christians from membership or leadership. Prof Hadley Arkes summarizes the case:
after all of the quick moves, the fact remained that the CLS was deprived of its standing on the campus because it ran afoul of the non-discrimination policy. It was deprived of official standing, not because of the all-comers policy, but because it could not accept a policy that barred all discriminations based on “sexual orientation.”
For Justice Ginsburg that was the point that finally carried. After all the grand distractions, the simple point was that a Christian group could not accept a policy that barred them from insisting that the only rightful form of sex was the coupling of a man and woman within the frame and commitments of marriage.
It was apparently beyond imagining, for Ginsburg, that anyone would doubt that a policy that barred such discriminations of sexual orientation would be anything but fair, defensible, even “viewpoint neutral.” So absorbed now was this perspective among liberals that it was hard to conceive anyone would challenge its palpable justice.
This is the best commentary on this case that I’ve seen so far. When I read his article last month, I was scared of this outcome, but could hardly believe that the court would be so dim. Anyhow, here is the money quote:
What the case finally came down to then was precisely the issue that I had noted in my First Things essay—that the policies barring discriminations based on sexual orientation stood on the same moral plane as the policies that barred discriminations based on race.
That point was never explicitly stated or argued during the oral argument, and now, two months later, it was never explicitly raised and defended in the course of Ginsburg’s opinion. What proved decisive was the understanding so critical to the case—and to the sexual politics of the Left —that it is never to be examined and tested for its validity in a strenuous way.
This is exactly my experience in debate as well. The “sexual orientation=race” is like a totemic chant: something to be repeated, but never actually examined.
