'All of the Blood and Treasure': The Founders on Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez

Abstract

In June of 2010, the United States Supreme Court announced its opinion in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez (CLS). While the terms “limited forum,” “viewpoint neutrality,” and “reasonable” pepper the majority opinion and concurrences by Justices Stevens and Kennedy, a serious and extended discussion of religious liberty in the context of the case is not to be found. Even Justice Alito‟s impassioned dissent, when discussing religion, relies on a First Amendment right to “expressive association,” rather than the religious elements of the amendment. Such an omission would have baffled those living in eighteenth- and nineteenth-century America, particularly those who assisted in writing and ratifying the U.S. Constitution, the Bill of Rights, and the Fourteenth Amendment. Those earlier Americans would have seen the issues in this case as directly involving the free exercise of religion and church-state relations. Following Justice Oliver Wendell Holmes‟s axiom that “a page of history is worth a volume of logic,” the views and actions of the nation‟s Founders and Americans of the Founding Era, as well as the Framers of the Fourteenth Amendment, shed much light on how the Court overlooked some of the most important issues in CLS, resulting in a misguided, even harmful decision.

Keywords: First Amendment, Originalism, CLS v. Martinez