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Benjamin N. Cardozo School of Law




A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in each domain are in agreement. Civil society institutions enjoy recognition as prominent sites for sustaining democracy. Or, at least, they are “mediating associations,” cultivating moral dispositions supportive of the political order. What happens, as the second idea contemplates, when values and virtues generated by other nongovernmental institutions conflict with political values and virtues? What does pluralism mean or require in a healthy constitutional democracy with a commitment, on the one hand, to the free exercise of religion and freedom of association, on the one hand, and, on the other, to a principle that free and equal citizenship requires being free from discrimination on certain grounds? Government may afford religious institutions exemptions from certain laws in order to protect religious freedom, but is not constitutionally required to, according to the landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990). There, the majority warned that unfettered freedom of religious practice would allow each person “to become a law unto himself,” exempt from all manner of “civic obligations,” while Justice Blackmun’s dissent stressed the basic congruence between the values and interests underlying Oregon’s anti-drug law at issue and those of the Native American Church. This article looks back at Smith as an instructive case about the political and constitutional dilemma over congruence, pluralism, and how to resolve the clash between distinct constitutional values. I offer a similar analysis of Bob Jones University v. United States (1983) in which the Court upheld the IRS’s revocation of the university’s tax exempt status because of its racially discriminatory policies. I then evaluate Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez (2010), as a significant case about congruence: the clash between a public university’s attempts to carry out its educative mission through enforcing norms of antidiscrimination and a student organization’s freedom to choose its members and promote a particular message about sexuality. The treatment, in the various opinions, of the relationship among race, sex, and sexual orientation discrimination and the requirements of toleration is illuminating for a new generation of cases about clashes between free exercise and antidiscrimination law.

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