Patheos has a new and helpful interview with Michael McConnell, who had argued on behalf of the Christian Legal Society in the Supreme Court case of CLS v. Martinez.
Read the whole thing if you’re interested, but here’s an excerpt:
Now, legally, there is nothing to prevent other universities from deciding to use an “all comers” policy as a way of manipulating religious groups, including and excluding those they wish to include and exclude?
It may be harder than they think. When you get around to trying to write down what an “all comers” policy would really look like, it’s a fairly daunting task. You’ll note that Hastings in its brief in the Supreme Court backpedaled furiously away from its “all comers” policy because they realized how many groups would be destroyed by it. They introduced a bunch of previously unmentioned exceptions to it. For example, groups can have an attendance requirement; a requirement to pay dues; they can have a competitive process for joining. They said that groups can enforce conduct requirements, without specifying what conduct requirements can be enforced.
The reason they did that is because practicalities make a blanket “all comers” policy absurd. So they are going to have to have exceptions. Once you get around to writing the exceptions, it’s going to be pretty difficult for law schools to come up with an “all comers” policy that really does what they would like it to do.
The Supreme Court decided this case on the basis of what is genuinely an abstraction: a description in a deposition of a policy that has never been enforced in reality. That is upsetting and annoying, but it also means that not very much was really decided.
Update: A nice round-up of responses can be found here.