The brief for Hastings Law School, defending its policy of requiring that all recognized student organizations allow all students to join (and vote), has now been filed with the Supreme Court, as have all the amicus briefs on both sides. The brief of the lgbt student group, Outlaw, which intervened in the lawsuit, is also in. The opposing party, Christian Legal Society, filed its brief in January. You will find all the briefs here. (One more brief will be allowed: the reply brief for the Petitioner CLS.)
Oral argument has been scheduled for April 19.
There are heavy hitters on both sides of this case. Stanford Law Professor Michael McConnell is representing CLS and Professors Doug Laycock of the University of Virginia Law School and Richard Epstein of the University of Chicago Law School each filed amicus briefs in support of CLS (for, respectively, a coalition of religious groups led by the American Islamic Congress and for the Cato Institute). Among the briefs supporting Hastings was one filed by the Association of American Law Schools, written by Professors Mike Dorf and Sherry Kolb of Cornell Law School, and another on behalf of State Universities, on which the Yale Law School Supreme Court Clinic collaborated.Those are just some of the academics.
The case is a complicated stew of issues, both factually and legally. One threshold dispute is over the nature of the Hastings policy: whether it is truly an all-comers policy, as described above, requiring that, to be recognized, student groups must be open to all students "regardless of their status or beliefs." This would make for the strongest argument that the school's policy is clearly viewpoint neutral. Alternatively, CLS is trying to argue (despite a stipulation to the contrary in the lower courts) that the school actually has an anti-discrimination policy, prohibiting student groups from discriminating based on specific characteristics, including sex/o and religion.
If it is the latter type of policy, CLS argues that its effect is to discriminate against it based on viewpoint, because CLS excludes students who cannot profess belief in the Christian trinity or who are engaged in "unrepentant participation in or advocacy of a sexually immoral lifestyle," which includes "all acts of sexual conduct outside of God's design for marriage between one man and one woman...[including] fornication, adultery, and homosexual conduct." CLS argues that its right to exclude, for example, students who are openly and proudly gay from voting or leadership positions (anyone can attend meetings) is guaranteed as part of its right of expressive association under the First Amendment. Hastings counters that an anti-discrimination policy is also viewpoint neutral, because its purpose is not to suppress any expression but to increase participation; and further that CLS is free to exist and proselytize, but simply cannot acquire the benefits of recognition.
I am frankly conflicted about this case. I think the better policy would not be the all-comers policy. I would favor allowing the student Democrats to exclude Republicans, the CLS to exclude non-believers, the lgbt group to exclude anti-gay advocates, etc etc. To my mind, although the distinction blurs in practice, it is critically important that people be excluded from viewpoint-driven groups based on viewpoint, not on status or identity. But is it unconstitutional for Hastings to enforce an all-comers policy? In other words, does CLS (or the lgbt group or any other group) have a constitutional right to exclude those who disagree with its philosophy, when what is at stake is not the existence of CLS but only its participation in the Hastings Law School system of recognized groups? Not so clear.
Although the holding of the case will center on expressive association and speech doctrine, there are other issues mixed in that carry broader implications, politically and culturally. One is simply whether religious belief is understood as a viewpoint or as an equal protection status. It is both, of course, but which one dominates - an artifact of law - could affect the analysis. A second issue is whether CLS is entitled to stronger constitutional safeguards than other expressive organizations because it is religious, an argument made explicitly in some of the briefs. In other words, maybe the student Republicans could be constitutionally forced to accept student Democrats as members, but conservative argue that the same principle should not apply to a religious student group. A third is whether the Court will accept the contention, made by some amici supporting CLS, that public institutions cannot have a compelling state interest in eradicating sex/o discrimination because that form of discrimination has not been accorded heightened scrutiny by most courts. These last two are extremely dangerous arguments.
It's going to be a fascinating argument.