By a 5-4 margin, the Supreme Court ruled in Christian Legal Society v. Martinez (2010 WL 2555187) that a UC-Hastings Law School policy of requiring all official student organizations to accept any student who sought to join was constitutional. The Christian Legal Society had argued that the so-called "all comers" policy violated its right of free association, because CLS excludes, inter alia, all gay people and anyone who engages in sex outside of marriage, based on the beliefs it advocates. There was a messy dispute over whether the all-comers policy was in fact applied evenhandedly, but CLS also argued that even if it was, religious groups should be exempt from its application. Justice Ginsburg wrote the opinion of the Court; there was a strong dissent by Justice Alito.
There were essentially two issues in the case: (1) whether an all-comers policy applied to every student group is constitutional as applied to CLS; and (2) whether the policy that student groups cannot discriminate based on specified characteristics including sexual orientation (rather than a requirement that they allow any student to join) - which is what CLS contended was the real reason they were denied recognition - is constitutional as applied to them. Unfortunately for CLS, its lawyers in the lower courts had stipulated that the Hastings policy was applied equally to every student group. Based on that, the Court reached only the first question.
It may seem obvious that the criteria for official recognition of student groups (and thus for eligibility for a variety of benefits) would have to be applied equally. But CLS argued that such an approach would have the effect of undercutting groups organized around a particular philosophy, and that such groups should be able to exclude students who disagree with that philosophy. And, indeed, that is the price of an all-comers policy: the student Democrats cannot keep right-wing Republicans from joining and seeking leadership positions, for example. The same principle applies to every group, and one among many applications would be that a student lgbt rights group could not keep out students who believe that homosexuality is immoral.
The Court noted that the advisability of an all-comers policy is different from its constitutionality. Such a policy obviously creates at least a hypothetical risk of hostile students hijacking an organization, but the question in this case was whether taking that risk in order to have a universally applicable rule was a reasonable option for a public university. (Private universities are not bound by the First Amendment.) The Court said yes, in large part because it rejected CLS's argument that an all-comers policy was covertly discriminatory, in that it discriminated against groups that wanted to disobey the non-discrimination rules. (Did you follow that?)
The decision does not mean that every other public university must adopt an all-comers policy. It does not mean that CLS will be barred from any presence on campuses even at schools that do. It means that CLS can constitutionally be denied the status of a recognized student group and the benefits related to that status. The Court analogized CLS to fraternities and sororities, entities that receive no financial aid from universities but which can participate in campus life in many ways.
Although the Court did not rule that an all-comers policy such as the one at Hastings is constitutionally required, I would expect that we will see more of them. Every law school has a non-discrimination policy that includes sexual orientation (it's required, with some exemptions for religiously-affiliated schools), and CLS has chapters at a lot of law schools. (Not every CLS chapter adopts exclusionary policies.) For any dean, the Hastings model now has one very big advantage: it inoculates you against this kind of lawsuit.
What CLS really wanted to litigate was question #2. The argument they wanted to have was about whether a mandate of equal treatment regardless of sexual orientation could be enforced against a religious organization that professes the belief that homosexuality is immoral. Their goal was to press on the Court an extension of the ruling in Boy Scouts v. Dale that the Scouts could not be forced to obey a state anti-discrimination law in violation of its anti-gay beliefs. One critical distinction between this case and Dale is that the Hastings policy concerns only recognition; nothing stops CLS from continuing to operate independently without changing their practices, while the Scouts would have been forced to integrate. But CLS also argued that even if compliance with the non-discrimination policy would be constitutional as applied to other student organizations, they should be exempt because they were a religious group.
Because it did not have to, the Court did not reach question #2. However, Justice Stevens did. In the last case on the last day that he will serve as a Justice, Stevens wrote a separate concurrence finding that a university non-discrimination policy enforced against CLS would be constitutional because it regulated the conduct of student groups, not their viewpoints, and that there was no basis for believing that Hastings had adopted it as a pretext for discriminating against conservative religious groups. Justice Stevens rather pointedly noted that "the dissent is willing to see pernicious antireligious motives and implications where there are none, [but] it does not seem troubled by the fact that religious sects, unfortunately, are not the only social groups who have been persecuted throughout history simply for being who they are."
And then there was Justice Alito's impassioned dissent, about which I will write separately, when I have more time.
The major point that seems to have been overlooked by almost everyone is outlined here:
http://prop8trialtracker.com/2010/06/29/boutrous-sends-letter-about-yesterdays-scotus-ruling/
It seems to me and some attorney friends that this is a huge step forward. Any comments on this. I'd be very interested in your take.
Thanks.
Posted by: TomTallis | June 30, 2010 at 05:48 PM