Last week, the Supreme Court issued a disturbing opinion that will directly impact students’ constitutional rights on public university campuses throughout the nation. In CLS v. Martinez, the Court affirmed the facial constitutionality of a University of California-Hastings policy that forces student clubs to allow all Hastings students to become club members and leaders—even students hostile to the clubs’ purpose and core beliefs. My colleagues have written several posts which provide in-depth analysis of the meaning and likely impact of this case.
In particular, David French aptly explains that the decision is both narrow and troubling. Narrow, because Hastings’ “all comers” policy is virtually the only one in existence at a public university. Troubling, because the decision’s sweeping language appears to significantly weaken the freedoms of speech and association. But the actual impact of the decision still remains to be seen. One of the primary concerns is that the decision will create a knee-jerk reaction in the courts to uphold standard nondiscrimination policies that were not at issue in Martinez.
A similar trend began to emerge in the wake of Wallace v. Jaffree, a case where the Supreme Court reviewed an Alabama statute that authorized a daily moment of silence in the public schools. The facts at issue demonstrated that this was indeed an extreme case. Both the senate sponsor of the law and the Governor admitted that the statute’s sole purpose was to return prayer to the public schools. Additionally, certain teachers at the plaintiff’s school had been using the period of silence to lead their classes in group prayers on a daily basis. And the State of Alabama had previously tried multiple times to inject prayer into its public school system by passing school prayer laws, but each effort was rebuked by a federal court. The Court explained that these factors showed that Alabama was not neutral towards religion as required by the Constitution, but was instead forcing prayer on its students. The Court indeed made clear that under other circumstances, the protection of voluntary student prayer during moments of silence was a constitutionally permissible goal:
The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every students’ right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.
Despite this clarification, because the case was the only word from the Supreme Court on moments of silence, courts immediately began to strike them down. The same year Wallace was decided, a federal appellate court struck down a moment of silence law even though it had none of the egregious circumstances present in Wallace. For twelve years, the legal landscape looked ominous for the moment of silence. But finally, in 1997, the U.S. Court of Appeals for the Eleventh Circuit upheld Georgia’s moment of silence statute. And soon after this decision, three other federal courts of appeal upheld similar statutes.
But to this day, Wallace continues to cast a shadow over federal courts and legislative bodies. Indeed, a federal district court in 2009 invalidated Illinois’ moment of silence law based on Wallace. This decision has been appealed and the ADF Center for Academic Freedom is urging the U.S. Court of Appeals for the Seventh Circuit to reverse. The court’s decision will go far in determining the breadth of Wallace’s impact. Notwithstanding, opponents of religious liberty will continue to raise Wallace in court and in legislative bodies to defeat moments of silence wherever they are implemented or even considered.
We are quite sure that university officials will invoke Martinez for as long as they can in order to push religious student groups to the fringe of the college campus. But they should be aware, that Martinez is an extremely narrow decision that provides little refuge for the vast majority of nondiscrimination policies at American universities. The ADF Center for Academic Freedom maintains that such policies, when used to compel belief-based groups to accept non-adherents, are unconstitutional. We will continue to defend the constitutional rights of student groups burdened by such policies, and will insist that the courts strictly hold Martinez to its narrow terms.