In a house editorial, the New York Times urged the U.S. Supreme Court to rule against Christian Legal Society and for Hastings College of the Law in CLS v. Martinez.   What follows is a response, submitted to but not published by The Times.

In the case just argued before the U.S. Supreme Court, Christian Legal Society v. Martinez, the public should be wary of any superficial analysis that the case is all about “discrimination” by a Christian student club and a law school that wants to stop it.  While it’s true that Hastings College of the Law in California prohibits “discrimination,” this assertion of what Hastings does is terribly misleading.

Hastings doesn’t just prohibit discrimination on the basis of the nine protected characteristics listed in its written Policy on Nondiscrimination; it also requires registered student organizations to confer voting membership and leadership upon everyone—even people who reject an organization’s core beliefs.  As the Hastings dean stated in a PBS interview, this means that a black student organization would be required to allow adherents of the Ku Klux Klan to become voting members.  Such a nonsensical policy goes far beyond preventing the sort of invidious reliance upon irrelevant characteristics that non-discrimination policies are designed to prevent.

A recent New York Times editorial referred to CLS as a “Christian group that bars non-Christian and gay students.”  While CLS limits leadership and voting membership to those that share its values as many student clubs do, it allows everyone to attend its meetings and participate in its events.  Moreover, CLS’s sexual conduct rule for officers and voting members does not target “gay students.”  Tiger Woods and Mark Sanford, for example, aren’t “gay,” but if they were students, they would have trouble becoming CLS officers.

The Times editorial also stated, “For years, the Christian Legal Society chapter at Hastings adhered to this [non-discrimination] policy.”  In reality, the two groups calling themselves “Christian Legal Society” at Hastings prior to the onset of the current dispute were not affiliated with the national CLS organization and are not the same as the one involved in the current lawsuit.  Furthermore, the first one required its officers and voting members to sign its statement of faith, too—the very same one that the current CLS chapter uses.

So, is this case really just all about funding?  No.  The CLS chapter didn’t even intend to seek funding until the Hastings director of student services, after learning that two chapter leaders were going to the annual CLS conference, offered them travel funds—a $250 grant that was later revoked.  The chapter is far more interested in access to meeting space and communications mechanisms—access that the Supreme Court has already ruled in Healy v. James cannot be denied to clubs like CLS.

And when money is involved, it is not used to pay “for discrimination.”  Money used to pay for pizza at an event open to the public, for example, doesn’t become money for “discrimination” just because the event is sponsored by a group that wants leaders who share its views just like other clubs do.

It’s also not true that Hastings determined in 2004 that state law requires it to ensure that its student organizations do not permit discrimination.  In fact, until this case reached the Supreme Court, Hastings never argued that the law required it to exclude CLS.  And even if a state law did require Hastings to punish CLS, a state statute decidedly does not trump the obligations imposed upon Hastings by the U.S. Constitution.

In the end, the idea that Hastings has a valid interest in protecting its own reputation by distancing itself from groups that depart from its own views is, to put it mildly, disconcerting.  At the heart of the Free Speech Clause of the First Amendment is a recognition that the government cannot use its considerable power to disfavor messages with which it disagrees, simply because it disagrees with them.  While it is true that a government school can pursue a policy of “promoting diversity” and “opposing discrimination,” it is not free to use whatever means it chooses to pursue those objectives.

Because Hastings could not identify anyone who wanted to serve as a leader or voting member of CLS while rejecting its religious commitments, the school found it necessary to trot out its own “reputational interest” to justify its treatment of CLS.  But if the First Amendment permits the government to punish a group so that the government can “make a statement” about its disapproval of the group’s speech, may God help us all.  Any government punishment of dissenting speech becomes self-justifying.

Hastings wants to argue that it isn’t so terrible for a group not to be recognized.  But would it accept that argument if, say, a university in the deep South in 1975 refused to recognize a student group formed for people involved in homosexual behavior?  The fact of the matter is that CLS members pay student activities fees like all other students do.  Access to meeting space and the use of communications mechanisms are vitally important.  If they aren’t, why does Hastings (and virtually every other university and college in the country) confer such benefits upon student groups?

For these reasons, it’s logical for people of all beliefs to support a Supreme Court ruling in CLS’s favor.  And that’s precisely why 14 state attorneys general and nearly 100 diverse groups representing a wide variety of beliefs and practices filed briefs in support of CLS in this case.

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Does a desire to preserve the expressive message of a Christian student group conflict with Christ’s call for us to “make disciples of all nations”?  That is the basic question posed by a comment to Greg’s “First CLS, Then the Klan?” post:

As a Christian law student I wonder how we are suppose to reach other people if we keep them out of our groups? Did Jesus speak only to Jews? I don’t know how I am suppose to live like Jesus if I am to seperate [sic] myself from anything that doesn’t believe. Just like Jesus spoke to the Samaritan women and the “sinners” we need to create a space for people of different beliefs to feel comfortable and learn about Jesus without feeling ostracized. Why would we want a club where only chritians [sic] can meet? We should remember that Jesus came for the sick not the healthy.

I agree with the premise of this comment, which is that Jesus came to seek and save the lost.  (Luke 19:10.)  Jesus’ message is one of hope and grace, of showing people that they need to stop running from God and start running toward Him.  Christ’s message was not just for Jews, but also for Gentiles.  But Jesus’ purpose—or message of salvation—does not conflict with His commandment to take this message to “all nations.”

The lack of conflict is evident in who Christ selected to spread His message.  He did not select unrepentant sinners or even those who thought of themselves as the most righteous under the Law.  Rather, Christ selected apostles who believed in Him and his message of salvation.  Those who were unwilling to repent were not the leaders of the early Church.  What happened when some early members of the Church argued that in order to be a true Christian, you had to continue to uphold the old Law?  Paul opposed them and said that they were not preaching the “truth of the gospel.”  (Galatians 2:14.)  Paul and the other apostles maintained the message of Christ by ensuring that false brothers did not infiltrate their ranks.  This occurs throughout the New Testament.  One of the consistent warnings for the early Church from Paul and the other apostles was not to be misled by false teachers.  (See, e.g., Acts 20:28-31; 2 Corinthians 11:1-15; 1 Timothy 1; Titus 1:10-16; 2 Peter 2; 2 John; and Jude.) Keep reading… »

Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at Cardozo School of Law in New York City.  Professor Hamilton argued that the Supreme Court should not hold that Hastings College of the Law violated the Constitution by refusing to confer registered student organization status on its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows:  if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case.  The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus.  Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded.  The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views.  A synagogue that requires its rabbi to be Jewish is not like the Klan.  A mosque that requires its imam to be Muslim is not like the Klan.  And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan.  Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Observers of the United States Supreme Court are noting the unusually-long scrutiny the justices are giving to Christian Legal Society v. Martinez, the case where the University of California-Hastings (in San Francisco) denied permission to the Christian Legal Society to meet on campus because it ran afoul of its nondiscrimination policy, as ADF has seen on other university campuses.  Specifically, CLS requires its leadership to agree with the Christian group’s statement of faith in Christ and to obey the Bible’s teachings to abstain from sexual relations outside of marriage, defined as one man and one woman.  UC-Hastings claims CLS engages in “religious discrimination” because atheists and Buddhists cannot become leaders of the Christian Legal Society.  Of course, environmentalist groups or other ideological student groups are free to require that potential officers or members agree with the viewpoints they advocate in order to join.  UC-Hastings also views CLS’s views on sexual purity before marriage as “sexual orientation” discrimination. 

The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association.  The federal district court ruled against CLS.  The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku.  The decision, in its entirety, states:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group.  The conditions on recognition are therefore viewpoint neutral and reasonable.  Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

So CLS appealed to the U.S. Supreme Court.  The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court.  According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September.  But no one imagined that by mid-November we would still be waiting for the Supreme Court to act.  Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices).  A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences.  This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his law.com blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case.  Calling for the record is also an odd and unusual step for the justices to take.  What is going on here?  Are the justices agonizing over some issue or fact?  Are they struggling to reach a consensus on what to do with the case?

For what it’s worth, here is my speculation.  We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.

Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy.  UC-Hastings has shifted between two positions on what its policy is.  At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs.  At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members.  So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.

The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional.  The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals.  If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit.  But is that the policy UC-Hastings has or not?  Maybe that is why the high court has called for the record from the lower courts.

ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus.  The Supreme Court does not necessarily need to address that question in the UC-Hastings case.

So, what will happen?  Will the Supreme Court grant review and hear oral arguments?  Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student?  Will it simply deny review after examining the case for weeks?  And when will that happen?  We simply don’t know, so the speculation mounts.  Maybe we will get some clarity from the Supreme Court on Monday, but who knows?  Stay tuned.