Would it be inappropriate to send a condolence card to our state attorney general, Robert Cooper? After all, it's his job to examine all the ridiculous bills our state legislators want to pass and tell them whether they're going to get shot down by a court.
On Thursday, Cooper announced that the Anti-All-Comers Bill that was designed to strip Vanderbilt of its police force was just as unconstitutional as the anti-all-comers bill Haslam had to veto last year:
The constitutional infirmity of SB1241 is not cured by the fact that it withdraws the police power from private universities that exercise their right to free association rather than simply banning, outright, the exercise of that constitutional right. It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006); L.L. Nelson Enterprises v. County of St. Louis, Missouri, 673 F.3d 799, 805-06 (8th Cir. 2012). Because SB1241 arguably imposes an unconstitutional condition, it is facially constitutionally suspect.
Cooper reasons that while the state does have the right to decide which universities have police forces, it "cannot assert that interest through an unrelated requirement that a private university abandon its right of free association." In other words, the state can't use the threat of Vanderbilt losing its police force as a back-door means of violating the university's free-association right.
And though Cooper doesn't address it, it also seems that the state would be open to constitutional trouble when it came to the Establishment clause. After all, the state is attempting to assert that Vanderbilt has to recognize Christian groups that don't want to accept gay members. But the state can't tell Vanderbilt the standards it has to be willing to accept in Christian groups. The state can't say, "Vanderbilt, you must recognize a group that excludes gay people as Christian, because we say so."
The state neither sets nor enforces the terms for what constitutes Christianity. And thank goodness for that! Conservative Christians wouldn't want the state to have that power, as much as folks like David Fowler have been pushing this bill. After all, tides turn and minds change and Fowler and his ilk don't want the state to decide in the future that, say, Lipscomb can't have student groups that exclude gay people.
So this really works out best for everyone.