hunter of justice

Christian Legal Society just can't beat Hastings' defense

In Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Supreme Court ruled that Hastings College of Law acted constitutionally in requiring that officially recognized student organizations abide by an "all comers policy," under which any Hastings student could join any student organization. The CLS lawyers thought they had a sure winner in that case, seeing it as their ticket to expansion of Boy Scouts v. Dale into a broader principle allowing for the exclusion of openly gay members from a variety of groups. Many CLS supporters were shocked by their 5-4 loss in the Supreme Court.

On remand, CLS argued that the all comers policy was a sham, i.e., that it was applied differentially, in a way that discriminated against CLS. On Wednesday, the Ninth Circuit ruled in CLS v Wu that this, too, was not a viable claim. From SCOTUSblog:

...The Ninth Circuit Court ... said it could not find in the record enough to show that the group’s chapter at Hastings College of Law in San Francisco had actually made the argument it now wanted to press.

The CLS chapter’s lawsuit in federal court contended that the College of Law discriminates against it by denying it campus privileges because it will allow only students who share its religious views to take part in its activities. ... [T]he Ninth Circuit had upheld the school’s so-called “nondiscrimination policy” on the premise that it was an “all-comers policy” that was enforced neutrally.  In a 5-4 ruling June 28, the Court agreed.

Although the CLS has contended that the school’s participation policy was unevenly enforced, targeting only those groups that organize around religious beliefs or that disapprove of homosexuality, the Court majority said that argument “flatly contradicts” an agreement among the parties in a lower court stipulation that the policy actually was an “all-comers” participation mandate that did not depend upon a particular group’s status or beliefs.  The “all-comers” policy, viewed that way, was valid, the Court concluded.

The chapter, however, also had a second strand in its discrimination argument — that the policy, even if an “all-comers” approach as written, actually was enforced in a discriminatory way in practice.  The supposed neutrality of the policy, CLS had contended before the Justices, was a mere pretext for discrimination against religious groups.  The Supreme Court, however, found that no lower court had ruled on that argument, “and this Court is not the proper forum to air the issue in the first instance.”   It sent that question back to the Circuit Court to rule on it “if, and to the extent, it is preserved.”

On Wednesday, the Circuit Court reacted.  Borrowing a phrase used by other courts in similar circumstances, the Circuit Court panel said that “Judges are not like pigs, hunting for truffles buried in briefs.”  Though it said it had, nevertheless, engaged in an “assiduous digging” in the legal papers filed by CLS’s lawyers, it found that the discriminatory enforcement argument had not actually been put forth.  “We’ve found nothing reasonably supporting its existence,” the panel said.

In neither the CLS opening brief in the Circuit Court, nor in its oral argument there, the panel wrote, did this version of the chapter’s discrimination argument appear in a clear enough form to put it before the judges.  While it conceded that “judges sometimes overlook issues fairly presented by the parties,” the Circuit Court said, “that’s not what happened here.  CLS simply failed to raise this issue the first time around, and it is not entitled to ‘a second bite of the appellate apple.’ ”

That ruling apparently put an end to the chapter’s challenge at this stage.  The Circuit Court, however, noted that, if in the future the law school applied its policy in a way that was discriminatory, “CLS may be able to file a new lawsuit.”  But the issue can’t be addressed in this litigation, it concluded, thus formally denying the chapter’s motion to send the case back to District Court  to consider the alternative argument.

Christian Legal Society: Is there still a pretext claim?

From (Mike) Dorf on Law:

...[W]hen the Supreme Court affirmed the 9th Circuit ruling in Christian Legal Society (CLS) v. Martinez, it did not address the claim advanced by CLS that Hastings Law School had enforced its "all-comers" policy in a discriminatory manner, denying registered student organization (RSO) status to CLS but granting RSO status to other student groups that violated the all-comers policy.  CLS had argued that the all-comers policy was a pretextual ground for denying RSO status to CLS, the real ground being discrimination based on religion.  In declining to address this claim, the SCOTUS said that on remand "the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved."

Unsurprisingly, the parties now take different positions before the Ninth Circuit as to whether the pretext argument is preserved.  CLS says it is, citing Justice Alito's dissent and bits of the record; Hastings says it isn't, citing bits of the majority opinion rejecting Justice Alito's characterization of the record, as well as other bits of the record; and then CLS again says the issue is preserved.  With the exception of a concluding speculation (below), I'll let interested readers sort this out for themselves, or just await the Ninth Circuit ruling on what is, at this point, principally an issue of civil procedure rather than constitutional law.

Here I want to raise a related question: leveling down.  Suppose that the Ninth Circuit concludes that the pretext claim is preserved and further concludes that in fact Hastings did not enforce its all-comers policy even-handedly.  It does not necessarily follow that CLS wins very much. That's because Hastings could eliminate the (assumed) constitutional violation in one of two ways: 1) It could eliminate the all-comers policy entirely, in which case CLS would get what it wants; or 2) It could, prospectively, apply the all-comers policy even-handedly, in which case CLS does not get what it wants.  As the Court explained in Orr v. Orr:

In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole).

Nothing in the above logic is limited to statutes, as opposed to policies (such as the all-comers policy) or to pure equal protection violations rather than violations of the parallel First Amendment prohibition on discrimination based on viewpoint or religion.

Note also that the (amended) complaint filed by CLS seeks declaratory and injunctive relief, not damages.  To be sure, it also includes a catch-all seeking whatever other relief the district court deems appropriate, but even if CLS obtains retrospective declaratory relief and some element of monetary compensation, going forward CLS could still be out of luck.  Although a district court has broad discretion to fashion an effective remedial injunction, in a case like this one it is hard to imagine that would include an order to Hastings to exempt CLS from its all-comers policy, assuming Hastings really does undertake to apply the policy even-handedly henceforth.  At most, the district court would be able to retain jurisdiction to monitor Hastings' compliance with the obligation to apply the all-comers policy even-handedly.

Thus I come to my concluding speculation.  I wonder whether the CLS lawyers thought this all through long ago:  Perhaps they realized that winning by showing that Hastings had discriminated in the past would be a Pyrrhic victory, precisely because it would permit Hastings to "level down," whereas their core argument--that the all-comers policy violated the right to freedom of association even if applied even-handedly--would have given CLS a much larger win.  If this speculation is right, that may say something about the likelihood that CLS preserved the less potent pretext/discrimination claim it now advances.

The CLS dissent: Justice Alito claims center stage

Everything about the CLS decision was smothered in the msm this week by the Court's decisions on the Second Amendment and the "honest services" fraud law (and of course the Kagan hearings); coverage of the dissent really got lost. But followers of lgbt law should pay attention to it, and not just because the dissenters fell only one vote short of a majority. Here are three other reasons:

• Together with his apparently reluctant concurrence in Doe v. Reed, Justice Alito's opinion in CLS marks him as Justice Scalia's reliable wing man for negative intensity regarding lgbt issues;
• The dynamic relationship between identity and viewpoint has become the heart of lgbt-related constitutional discourse; and
• The positioning of social conservatives as an unpopular minority at risk of suppression produces their strongest arguments, both morally and legally, a precise inversion of the "moral majority" atmosphere of the 1980s, when they argued that AIDS was God's retribution against homosexuals.

Alito's the Man

Everyone expected that Justice Alito would be a reliable conservative vote on the Court, but no one knew how vehement he would be.  Now we know.  At least when it comes to lgbt issues, he's vehement.

And his sympathetic boss has taken notice. There could be many reasons why Chief Justice Roberts selected him to write the opinion of the four dissenters - here are two possibilities: to give him the ball and thus the opportunity for leadership in a field that he seems to care about quite a deal, and to give Justice Scalia some relief time on the bench, a break from being the only Justice who writes ripper dissents in these cases, a role he played in Lawrence and Romer.

The bad news is that Scalia Jr. has arrived.  The best news is that Justice Alito and Justice Kennedy disagree.

Viewpoint [v.] [and] [<-->] Identity

In the bad old days when Hardwick was still good law, lgbt rights lawyers
labored mightily at a pretty impossible task: trying to convince courts that there was a constitutionally significant distinction between the sexual conduct that gay people engaged in and their identity as gay (which I mean here to encompass lesbian and bisexual). When Lawrence was decided, especially because of its weaving together of privacy and equality language, that distinction bit the dust. To paraphrase Justice Kennedy, the distinction was incorrect when it was articulated and it is incorrect today.

But the conundrum of how to classify "gay identity" - a compound of expression, conduct, and belief as to the moral worth of honest sexuality - has not gone away nor gotten much easier, so long as one has to operate within the boxes of legal doctrine. The classification question doesn't matter much in life, but it can be decisive in law. If you flip the perspective to opposition to gay rights, you get the same conundrum from the opposite side. Are "anti-gay advocates" opposed to sexual conduct between two men or two women; or to pro-gay speech; or not to either but to the idea that homosexuality and heterosexuality are morally equivalent? Does it matter in life? Should it matter in law?

Justice Alito's opinion places CLS squarely in the third camp, and argues that unless CLS gets an exemption from the non-discrimination policy, its own right to express and argue for its beliefs will be violated. One rejoinder from the majority is that the non-discrimination policy prohibits the conduct of exclusion by a group receiving a form of public benefit, rather than the expression of belief. There are plausible arguments in support of both of these framings, and the difference between them is, at bottom, what created the 5-4 split among the Justices.

Which of these two conflicting minorities is entitled to the protection of the state?

Justice Alito gave voice to the cri d'coeur of CLS, which is that under the Hastings policy, gays get to be everywhere and we don't get to have our own safe space. Of course CLS could not be shut down because of their anti-gay views, nor could CLS be forced across the board to admit people who disagree with those views. Both of those actions by the state are, happily, inconceivable under the First Amendment. But does CLS get to exclude who it wants to and to participate in the Hastings system of recognized student organizations?

I phrased this third section's question as "entitled" because that word conveys both the issue of entitlement under the law and the more normative inflection conveyed by the same word. This decision, like any case before the Court, is about law; and Justice Alito begins his opinion by invoking the great mantle of the First Amendment's freedom to express "the thought that we hate." (The phrase comes from an opinion by Justice Holmes 81 years ago.) One of the reasons that strong First Amendment protections are often unpopular is because they serve to protect the expression of ideas that are widely (and often properly) vilified. (Think Nazis marching in Skokie.)

Almost the only victories in gay rights cases in the early stages of the movement were grounded in precisely this principle - judges, like everyone else, thought the idea of homosexuals expressing pride was virtually a joke, but the First Amendment saved us again and again. Now conservative Christians are seeking that same protection as an unpopular (in the context of Hastings) minority, as they have every right to do. And with that explicit legal claim comes their silent corollary claim for the moral high ground as the persecuted minority.

++++

I side with the majority in this case: I think that the Hastings model of an all-comers policy is constitutionally permissible.  Whether that is the choice that I would make if I were running a law school is another question.

Supreme Court rejects preferential treatment for religious organizations (expanded)

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.

End of Supreme Court term approaches: 2 lgbt-related cases still pending

The Supreme Court operates on an academic-style calendar, with each term beginning in the fall and running through roughly the end of June.  Before it leaves for summer break, the Court issues decisions in all cases that have been argued during that term. So we are now in the final few weeks of the 2009-2010 term, with about 20 cases still undecided, and three more days on which the Court has announced it will issue opinions: this Thursday the 17th and the following two Mondays, June 21 and 28.

Among the undecided cases are Christian Legal Society v. Martinez, a CLS challenge to a policy at UC-Hastings Law School that requires all student organizations seeking recognition by the school (with the attendant benefits) to abide by a non-discrimination policy, and Doe v. Reed, in which individuals who signed petitions to put a measure to rescind the state's domestic partner law on the Washington state ballot challenged the release of their names under a state freedom of information law.

While predicting based on oral arguments is always perilous, the enterprise may be even less sensible for these two cases because in both, there is reason to expect that the opinion issued this month may not finally resolve the issue.  In the CLS case, several justices expressed frustration about whether a live controversy exists as to a central factual aspect of the case (whether the Hastings policy has in fact been applied across the board, or whether CLS was somehow singled out). In Reed, although the argument for a blanket exemption from the FOIA law for petition signers seemed to be a non-starter, a ruling to that effect might just send the case back to the lower courts for a more focused inquiry into whether an exception is justified for signers of this petition, because of their supposed fear of retaliation by pro lgbt rights advocates. Even less than final resolutions in these cases may produce some interesting opinions.

Tune in again Thursday...

Backstory on the messy Supreme Court argument in CLS v. Martinez

Following the jump, I've posted Lyle Denniston's report from SCOTUSBlog (HT Stuart Biegel) on the oral argument this morning in Christian Legal Society v. Martinez. (Or read the full transcript.) The short version is that several Justices were dismayed by CLS disputing a key fact to which it had stipulated below: that Hastings Law School applied its "all comers" policy evenhandedly. The policy requires that, to be recognized, student organizations must allow all students to fully participate in their activities. If the policy was not applied across the board to all student organizations, then CLS has a strong claim of discrimination.  If it was, then CLS is asking for, dare I say it, special rights. (More background here)

Lyle's post suggests that there was a bit of snarkiness among the Justices, along the lines of - why should we be spending our time on this case if the factual record isn't even clear. And behind that was probably a fair amount of I-told-you-so from Justices who did not want to grant cert. Four Justices must vote to grant cert before the Court will take a case, and the timing of what happened here suggests that there was a protracted tug of war over that question.

The CLS cert petition was filed last summer. Rulings on petitions that come in over the summer are announced on the first Monday in October, or very soon thereafter.  Those of us who had been watching the case expected a cert decision then, but it didn't come.  Then week after week went by without a ruling on whether the Court would grant cert. At least one Justice took the unusual step of asking that the full record be sent from the Ninth Circuit, which typically occurs only after the Court has granted cert. Finally on December 7, a presumably wavering fourth Justice voted to bring the case to the Court.

So my hunch is that when Justice Breyer wondered out loud "what do I do with this case," his underlying complaint was as much with four of the brethren as with counsel. The Court may still rule on the merits, but it may also dismiss cert as improvidently granted.

Full description of the argument after the jump -->

Oral argument previews

Ruth Robson has posted videos of two panel discussions that include attorneys for the parties in Christian Legal Society v. Martinez, which is being argued tomorrow.

Will the Christian Legal Society case produce one of the last Stevens opinions?

The Supreme Court will hear arguments Monday morning in Christian Legal Society v. Martinez. CLS is challenging the constitutionality of a Hastings Law School policy that requires student organizations to allow all students to participate as voting members and, if elected, to serve as officers, before the group can be formally recognized and get the benefits that flow from recognition. The CLS strategy is to rely heavily on Boy Scouts v. Dale, in which the Court held that the Scouts could not be forced to comply with a state anti-discrimination law that would have required allowing gay men to serve as scoutmasters. There was an impassioned dissent in that case, joined by four Justices. Its author was Justice Stevens, who has just announced his retirement from the Court.

Much of the Stevens dissent cast doubt on whether the Scouts had genuinely adopted a policy condemning homosexual conduct or whether their purported moral beliefs were invented as a rationale to justify exclusion of gays. By contrast, the CLS policy condemning any sexual conduct outside of heterosexual marriage is quite clear. So I don't assume that it's a sure thing that Stevens will rule against CLS in this case, although it's a pretty good bet. 

For example, the Stevens opinion in Dale (530 U.S. 640, 695) argued that

[I]f merely joining a group did constitute symbolic speech; and such speech were attributable to the group being joined; and that group has the right to exclude that speech (and hence, the right to exclude that person from joining), then the right of free speech effectively becomes a limitless right to exclude for every organization, whether or not it engages in any expressive activities. That cannot be, and never has been, the law.

If Justice Stevens is in the majority in the CLS case and Chief Justice Roberts is not, then Stevens (as the senior Justice in the majority) will designate who writes the opinion of the Court. In that situation, my bet is that he will write this one himself. If the votes don't fall out that way, I wouldn't be surprised to see a separate Stevens opinion in dissent, echoing the points he made in Dale.

 

Briefs surge into Supreme Court in Christian Legal Society case

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.

CLS files opening brief in Supreme Court

Lawyers for the Christian Legal Society, led by Stanford Law Professor and former Court of Appeals Judge Michael McConnell, filed the Brief for Petitioner today in the Supreme Court. Commentary to follow.

Gay rights and Republican lawyers: l'affaire continues

The Prop 8 trial is expected to end this week, possibly as early as Wednesday. What has been treated in the media as Ted Olson Presents will go on hiatus until final arguments, which Judge Walker has said he wants to hear after he has had a chance to review the evidence. Meanwhile, Olson had a pretty good week back at the Supreme Court, where he was the winning lawyer in Citizens United v. Federal Election Commission, the case that decimated what passed for a campaign finance reform law.

But long before Olson will be before the Supreme Court as a gay rights lawyer, the Justices will hear from the two other high quality and highly paid stars in the conservative lawyer firmament. Hastings Law School has hired Gregory Garre and Maureen Mahoney to defend its anti-discrimination policy against the challenge against it by the Christian Legal Society. CLS asserts that it has an expressive association right to exclude gay students, and Hastings argues that it has a right to deny official recognition if a group is not open to all students. 

Both Garre and Mahoney are, like Olson, superb advocates. But their role in the CLS case, like Olson's in Perry, illustrates the ways in which public interest litigation is becoming less and less distinct from ordinary corporate practice. Big firms (sometimes acting pro bono, although not in Perry or CLS) are being brought in to litigate important and high visibility cases on behalf of the public interest law groups that function as co-counsel or sponsors of the litigation. What's wrong with this picture?  Not anything, necessarily, but it surely marks a radical change from a professional landscape in which the outsider lawyer carried the case all the way through appellate stages, including to the Supreme Court.

Part of the reason is the increasing specialization of legal work, manifest in the growth of a small elite group of Supreme Court practitioners. Part of it is the sharp, almost even split among the Justices along ideological grounds in almost every area of constitutional law. And part of the reason is surely that conservative Justices currently hold the upper hand in that split, thereby creating a special appeal for having a lawyer well known for her or his conservative credentials argue your case. 

In the CLS case, it is easy to see why Hastings chose Garre and Mahoney (both partners at Latham Watkins). Both Garre, who was Solicitor General at the very end of the Bush 43 presidency, and  Mahoney, who successfully represented the University of Michigan Law School in defending its affirmative action policy in Grutter v. Bollinger, are regarded as excellent Supreme Court advocates. Their biographies bear a stunning resemblance to that of Chief Justice Roberts: all were former Rehnquist clerks and appointees in Republican Justice Departments. Mahoney was also a Bush 43 nominee for a federal judgeship, but was not confirmed.

I suppose the irony here is that "hired gun" no longer just means that a lawyer who once sought to do good will represent tobacco companies, investment banks, or big pharma. Apparently, it also means that Republican true believers will represent queers and the people who love them. At least if the price is right.

 

Debate on Christian Legal Society case continues

An editorial in the LA Times:

The U.S. Supreme Court agreed last week to referee a dispute between a University of California law school and a Christian student group that claims it's being discriminated against -- in the name of antidiscrimination. The Christian Legal Society, which requires its members to forswear sex outside heterosexual marriage, is contesting the refusal of UC Hastings College of the Law in San Francisco to afford it the privileges enjoyed by other student groups.

It's tempting for believers in equality for gays and lesbians (ourselves included) to side with the law school. But more is involved in this controversy than the school's opposition to discrimination on the basis of sexual orientation. The issue for the court is whether Hastings is denying the Christian group access to university facilities because of its beliefs, not its conduct. On this point, the Christian Legal Society has a strong case.

Hastings accords a broad range of groups the status of "recognized student organization," which gives them permission to use the college logo as well as access to college newsletters, bulletin boards and some activity fees. ...

When the Hastings chapter of the Christian Legal Society applied for recognition, it was refused on the grounds that it violated the college's policy against unlawful discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." The school argued that although the society opens its meetings to all, it limits voting membership and leadership positions to students who subscribe to its interpretation of Christian doctrine, including a prohibition on homosexual conduct. That, according to Hastings, constituted discrimination against both non-Christians and gays.

The first of those charges is easy to dispense with. A 1995 Supreme Court decision involving the University of Virginia made it clear that state schools may not deny student religious groups access to activity fees available to other student groups. But what about the college's ban on discrimination based on sexual orientation? The Christian Legal Society argues that students with a homosexual orientation may join, and even lead, the group if they embrace its opposition to homosexual conduct.

We realize, of course, that very few, if any, gay and lesbian students would fall into that category. But that's not the point. The point is that the Christian Legal Society determines eligibility for membership not on who an applicant is but on whether he or she holds -- and lives by -- certain beliefs. In that sense it is no different from other groups united by a political or economic philosophy. Granted, some students find the society's beliefs offensive, and not all Christians share its views about homosexuality. But once the law school decided to recognize a variety of student organizations, it was required by the 1st Amendment to not pick and choose on the basis of beliefs, religious or otherwise.

A  reply by NCLR attorneys Shannon Minter and Chris Stoll:

...The Times asserts that CLS has a strong argument that it is being targeted for its beliefs rather than its conduct. That is not the case. The Hastings policy does not restrict in any way the beliefs that an official student organization may espouse. All that the policy requires is that any officially recognized student group must be open and accessible to all students. The Women's Law Assn., for example, must admit men, which it does. Likewise, the Black Law Students Assn. admits white students, and Outlaw is open to heterosexual students.

The fact that Hastings' nondiscrimination policy applies equally to all clubs without regard to viewpoint or subject matter of the club also distinguishes it from the 1995 Supreme Court decision to which The Times' editorial refers. In that case, a public university declined to provide official recognition and resources to a student newspaper because the paper was written from a religious viewpoint. Hastings' policy does not prevent official student organizations from holding or expressing any view, religious or otherwise. A variety of religious groups have existed at Hastings for many years. All of them comply with the nondiscrimination policy -- except CLS.

Nothing about CLS' 1st Amendment freedom-of-association argument would limit which clubs could be exempt from Hastings' nondiscrimination policies. The 1st Amendment right CLS seeks would apply equally to a club that wished to discriminate for political or philosophical reasons, or simply out of animosity. To accept CLS' argument would mean, for example, that a white supremacist student organization would possess a constitutional right to obtain official recognition and eligibility for university funding while maintaining a membership policy that excludes African Americans, Jews and Roman Catholics. A ruling in CLS' favor could force universities to choose between being unable to enforce any sort of anti-discrimination rule against any student club or (more likely) ending all university support for any type of club. Is that what The Times wants?...

Who's intolerant? McConnell weighs in for CLS

Following are comments by Stanford Professor Michael McConnell in response to Mike Dorf (posted yesterday) regarding the Christian Legal Society case. McConnell, who wrote the Supreme Court brief for the Boy Scouts in the Dale case, will also represent the Christian Legal Society in the Supreme Court.

I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.”  The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.

There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith.  Must synagogues hire non-Jewish rabbis?  Must a Baptist Bible study group have a Catholic chair?  The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience.  Others are free to attend the  CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs.  There is nothing wrong or “intolerant” about this.  It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message.  But only when it is the religious group has the Hastings administration cried foul.

And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman.  Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place.  These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual).  Others do not.  But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.” 

It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out.  But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.       

Which side in this case is being “intolerant”?  Those who want to meet and speak just like every other student organization, or those who have kicked them out?

After the jump, Dorf replies to McConnell -->

Debates begin on Christian Legal Society case

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators.  First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise.  Excerpted from Writ:

...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively....

...[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. ...

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum....

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger ..., the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome -->

Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars - responds to Dorf, who then replies.

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 -->