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December 07, 2009

Supreme Court grants cert in Christian Legal Society case

This morning, the Supreme Court agreed to hear a case in which the Christian Legal Society argues that it has a First Amendment right to recognition as a student organization, despite its refusal to allow lgbt students to become members. Both the trial court and the Ninth Circuit Court of Appeals had ruled that Hastings College of Law could enforce its anti-discrimination policy requiring that all student organizations be open to all students. CLS contends that the school's policy violates its expressive, association, and free exercise rights by not permitting it to require that all voting members and officers "share its core religious beliefs."

With this grant of certiorari, the conflict between religious liberty and lgbt equality will take center stage in the development of lgbt rights law. The case is likely to be argued in March or April.  The Court issues all opinions in pending cases before the term ends at the end of June.  Because this argument will be heard late in the term, the decision is likely to be announced relatively late as well, probably during June.

The Court had been delaying its decision on granting review, and took the highly unusual step of asking for the full record early last month. One imagines that at least one Justice wanted to see the record before voting to take the case; the votes of four Justices are required for the Court to grant cert.

For copies of the cert petition, opp cert and reply brief, plus the parties' briefs below, see CLS web page. Excerpts from the trial court decision, which was summarily affirmed by the Court of Appeals, after the jump -->


The following excerpt is from the District Court opinion, 2006 WL 997217, which was summarily affirmed by the Ninth Circuit, 2009 WL 69339.

This case concerns whether a religious student organization may compel a public university law school to fund its activities and to allow the group to use the school's name and facilities even though the organization admittedly discriminates in the selection of its members and officers on the basis of religion and sexual orientation.

CLS is an unincorporated student organization comprised of students attending University of California, Hastings College of the Law (the “Law School”). The mission of CLS is “to maintain a vibrant Christian Law Fellowship on the School's campus which enables its members, individually and as a group, to love the Lord with their whole beings-hearts, souls, and minds-and to love their neighbors as themselves.” In the beginning of the 2004-2005 academic year, CLS applied for, but was denied the privilege of becoming a recognized student organization at the Law School.

University of California, Hastings College of the Law is a public law school located in San Francisco and is part of the University of California school system. …The Hastings Defendants permit student organizations to register with the Office of Student Services. Student organizations must be registered in order to gain access to [various] benefits…

As a condition of becoming a “registered student organization,” the Hastings Defendants require a student organization to comply with the Law School's Policies and Regulations Applying to College Activities, Organizations and Students, which requires, inter alia, registered student organizations to abide by the Policy on Nondiscrimination (“Nondiscrimination Policy.) The Nondiscrimination Policy provides:

The College is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, College-owned student residence facilities and programs sponsored by the College, are governed by this policy of nondiscrimination....

The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.

Hastings requires registered student organizations to allow any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs...

[CLS] bylaws require any student who wants to become a member to sign a “Statement of Faith” which provides:

Trusting in Jesus Christ as my Savior, I believe in:
• One God, eternally existent in three persons, Father, Son and Holy Spirit.
• God the Father Almighty, Maker of heaven and earth.
• The Deity of our Lord, Jesus Christ, God's only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
• The presence and power of the Holy Spirit in the work of regeneration.
• The Bible as the inspired Word of God.

CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in “unrepentant homosexual conduct” or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers. The bylaws also pronounce a “code of conduct” for officers which provides that officers “must exemplify the highest standards of morality as set forth in Scripture.” While only actual members of CLS may vote for or remove officers, stand for election to become an officer, or vote to amend the organization's constitution, CLS's meetings and activities are open to all students, regardless of their religion or sexual orientation.

…On September 17, 2004, CLS submitted its registration form and set of bylaws to the Office of Student Services. Hastings informed CLS that its bylaws did not appear to be compliant with the Nondiscrimination Policy, in particular the religion and sexual orientation provisions, and invited CLS to discuss changing them. Hastings further advised CLS that to become a recognized student organization, CLS would have to open its membership to all students irrespective of their religion or sexual orientation. …

CLS contends that Hastings' enforcement of its Nondiscrimination Policy, and its refusal to grant CLS an exception to exclude students on the basis of religion and sexual orientation, infringes its members' rights to free speech, free association, free exercise, and equal protection. As set forth below, the Court finds that Hastings' uniform enforcement of its Nondiscrimination Policy infringes none of these constitutional rights....

[T]he Court finds that on its face, Hastings' Nondiscrimination Policy targets conduct, i.e. discrimination, not speech. As in Rumsfeld v. FAIR, the Court finds that the Nondiscrimination Policy regulates conduct, not speech because it affects what CLS must do if it wants to become a registered student organization-not engage in discrimination-not what CLS may or may not say regarding its beliefs on non-orthodox Christianity or homosexuality.

In Hurley, even though the [Supreme] Court found that the anti-discrimination statute did not target speech on its face, the Court focused on the “peculiar” application of the statute to require a private entity organizing a parade to admit a group seeking to march behind a particular banner. Significantly, the private group expressly disclaimed any intent to exclude all openly gay, lesbian, or bisexual individuals from participating in other approved parade contingents. In contrast to Hurley, CLS is not excluding certain students who wish to make a particular statement, but rather, CLS is excluding all students who are lesbian, gay, bisexual, or not orthodox Christian….

At the hearing on these motions, CLS argued that Hastings' enforcement of its Nondiscrimination Policy suppressed CLS's speech that “homosexuality is not Christian.” First, as discussed above, the evidence does not show that CLS has been precluded from expressing any particular idea or viewpoint. Rather, to become a recognized student group, Hastings requires that CLS merely refrain from excluding students on the basis of their religion or sexual orientation. Second, even if the record could be construed to support CLS's position that its “speech” regarding homosexuality has been suppressed, CLS has not shown that the Nondiscrimination Policy targets speech as opposed to conduct. …

Therefore, the Court concludes that on its face and in its application to CLS, the Nondiscrimination Policy regulates conduct, not speech.

Because the Court finds that the Nondiscrimination Policy regulates conduct, the Court will analyze whether CLS's free speech rights have been infringed pursuant to the standard from United States v. O’Brien....

States have the constitutional authority and a substantial, indeed compelling, interest in prohibiting discrimination on the basis of religion and sexual orientation. The interest in prohibiting discrimination is particularly critical in the context of education.

Moreover, “[t]he governmental interest in prohibiting such discrimination ... is not directed at or related to suppression expression.” Therefore, the Court concludes that the Policy prohibiting discrimination on the basis of religion and sexual orientation, among other categories, is within the Hastings' constitutional authority as a state institution, and that the Nondiscrimination Policy furthers a governmental interest unrelated to the suppression of free expression-protecting students from discrimination. Furthermore, as discussed above, …Hastings' Nondiscrimination Policy is directed at conduct unrelated to the suppression of expression. Thus, the first three prongs of the O'Brien test have been satisfied.

With respect to the last prong of the O'Brien test, courts have found that the incidental restrictions on free speech rights when a government enforces an anti-discrimination statute against an organization seeking to exclude individuals were no greater than essential to the furtherance of the state's interest in prohibiting discrimination. “[A]n incidental burden on speech is no greater than essential, and therefore permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Rumsfeld. The Hastings' Nondiscrimination Policy easily meets this standard. ...

Accordingly, the Court concludes that Hastings' enforcement of its Nondiscrimination Policy meets all four prongs of the O'Brien test, and thus, does not unconstitutionally infringe CLS's freedom of speech...

[The court found that the Nondiscrimination Policy is a viewpoint neutral and reasonable regulation of speech in a limited public forum.]

… CLS [also] argues that its right to expressive association has been infringed. It is undisputed that CLS is being denied the right to official recognition by Hastings and that it is being denied access to particular areas of the campus and some avenues of communicating with its members and other students. What is disputed is the legal and practical effect of these limitations.

First, it is important to note what this case is not about. Although CLS relies heavily on Dale and Roberts, these cases are inapplicable. Dale stands for the proposition that “forced inclusion of an unwanted person in a group infringes on the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints.”. Similarly, the Court in Roberts addressed the validity of forcing a group to accept members it did not desire. Here, CLS is not being forced, as a private entity, to include certain members or officers….

…Hastings is not directly ordering CLS to admit certain students. Rather, Hastings has merely placed conditions on using aspects of its campus as a forum and providing subsidies to organizations. If CLS wishes to participate in the forum and be eligible to receive funds, it must comply with Hastings' Nondiscrimination Policy. If not, CLS is “free to terminate its participation ... and thus avoid the requirement of the nondiscrimination provision.” CLS may continue to meet as the group of its choice on campus, excluding any students they wish, and may continue to communicate its beliefs as it did all through the 2004-2005 academic year. Therefore, Dale and Roberts are inapplicable here….

The broad class of students CLS seeks to exclude significantly differs from the Boy Scouts' conduct in Dale. CLS does not confine its desired discrimination to students who are open and honest about being gay, lesbian, or non-orthodox Christian, let alone leaders on campus advocating for gay rights or non-Christian faiths. Rather, CLS seeks to exclude all lesbian, gay, bisexual or non-orthodox Christian students.

Moreover, CLS does not demonstrate how admitting lesbian, gay, bisexual or non-orthodox Christian students would impair its mission. Significantly, unlike the Boy Scouts in Dale, CLS has not submitted any evidence demonstrating that teaching certain values to other students is part of the organization's mission or purpose, or that it seeks to do so by example, such that the mere presence of someone who does not fully comply with the prescribed code of conduct would force CLS to send a message contrary to its mission. According to CLS, its mission is “to maintain a vibrant Christian Law Fellowship on the School's campus which enables its members, individually and as a group, to love the Lord with their whole beings-hearts, souls, and minds-and to love their neighbors as themselves.” …

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