CLS v. Martinez: Some Thoughts on the Supreme Court Decision
On Monday, June 28, the US Supreme Court issued its opinion in Christian Legal Society v. Martinez, affirming the 9th Circuit's decision that Hastings College of Law, using a highly unusual policy, could de-recognize a CLS law student chapter because it required its members and leaders to sign a statement of faith and adhere to that statement in their conduct.
Initially, the college claimed that CLS "discriminated" because of its requirements to sign a statement of faith and attempt to live by it. The court did not reach a decision, however, regarding the school's written discrimination policy, but that Hastings had simply de-recognized CLS because it did not comply with the law school's unwritten (and heretofore un-applied) "accept-all-comers" policy for student groups. The policy, according to Hastings, requires all groups to let any student join, regardless of their adherence to the group's principles. White supremacists must be permitted to join the Black Law Students Association, and Democrats must allow Republicans to join-- or lead-- their group. Because CLS is the only group in the history of the school to be de-recognized under this policy, and because it is hard to believe that any institution of higher learning would have such a policy, we argued that the policy was a mere pretext. Justice Ginsberg, writing for the Court, held that this issue was not fully heard in the lower court.
Justice Alito's dissenting opinion (joined by Chief Justice Roberts, Justice Thomas, and Justice Scalia) provides an excellent overview of the issues.
For a brief but good summary of the opinion, both Christianity Today and World Magazine have informative pieces.
For a free speech perspective, see this from FIRE and this perspective from the Huffington Post.
For some scholarly discussion, visit the Mirror of Justice Blog.
The Chronicle of Higher Education has an interesting article on the state of non-discrimination policies as well.
Our Press Release is here.
Implications and Brief Analysis
1. The holding is very narrow, and applies only to the Hastings-style "all comers" policy, which does not exist at any other public university. This means that CLS v. Walker 453 F.3d 853 (7th Cir. 2006) is still good law. Walker held that a traditional non-discrimination policy may not be applied to religious groups who require a statement of faith from members.
2. The record here demonstrates that Hastings singled out CLS for application of its "all comers" "policy" and that other groups had constitutions that required their members to adhere to their core beliefs, but that were nonetheless granted recognized student group status.
3. Even with these bright spots, the ruling is not what we expected or what we had hoped for. It would be wrong to say that CLS is not deeply disappointed that a state-sponsored institution can get away with this sort of censorship. Justice Alito, writing for four justices, says it well:
The Court's treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS's application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups-- groups to which, as Hastings candidly puts it, these institutions "do not wish to . . . lend their name[s]."
4. Please continue to pray for this issue and for our student groups around the country who desire to meet on campus to be salt and light to those around them. Despite media coverage to the contrary, CLS groups do not "ban gays" from attending meetings or concern themselves with "sexual orientation." The requirement of chastity outside of marriage is something that the law school seized upon as "discriminatory." It is a rule that CLS has applied to all, regardless of sexual orientation. CLS cares about conduct, not orientation. The headlines on this case might as well read: "Supreme Court Rules that Christian Student Group that Won’t Permit Atheists to Lead Bible Study Can be Kicked Off Campus." Unfortunately, that is now true at Hastings.