CLS vs. Martinez – Outcome

I promised a lot of you that I would let you know as soon as I did how the case came out.  Well, on a whim, I checked into the case today and it turns out that the decision was handed down this morning.  In a 5-4 decision, the Supreme Court sided with UC Hastings, determining that, based on the “all-comers” policy that the school purported to follow, the school made a reasonable, content-neutral restriction on speech.

Here is the link for the decision, for anyone interested.

The majority opinion was written by Justice Ginsburg, and it rested the decision on the grounds that CLS (Christian Legal Society) was not substantially barred from its expressive activities and that what CLS was seeking was not free expression but a special exemption from a generally-applied school policy.  In fact, the majority harshly chastised CLS for trying to get around a stipulation of facts that both parties had agreed to earlier in litigation (namely that UC Hastings had a policy requiring all school organizations to admit any student to membership or leadership).

Although this opinion represents a defeat for CLS, the precedential value of the opinion going forward is severely weakened by two things.  First, this ruling rests squarely on the assumption that a school is applying a true all-comers policy on campus, requiring that no student group restrict eligibility for leadership to those who agree with the group.  This is a pretty odd policy, and it is in fact not the policy that was in place when CLS was denied the ability to register as a student group, so I’m not sure how many other schools are going to pursue this idea.

More importantly, the majority opinion only represents three justices, and it is the majority because both Justice Stevens and Justice Kennedy wrote concurring opinions.  That means that future cases will only be able to look at the judgment itself for precedent, while almost everything said by any of the opinions will be of debatable value.  Traditionally, this would mean that this case is poor precedent for future cases trying to attack groups like CLS more aggressively, and the case itself is limited fairly closely to its facts.

Finally, on a more positive note, Justice Alito wrote a scathing and persuasive dissent in the case.  He maintains that Justice Ginsburg’s opinion distorts the record of the case by making three central assertions:

1. Hastings, for the past 20years, has required any student group seeking registration to admit any student who wishes to join
2. The effects of Hastings’ refusal to register CLS have been of questionable importance
3. This case is about CLS’s desire to obtain “a state subsidy”

Justice Alito points out that there was no mention of the “all-comers” policy until litigation had begun.  Instead, the school’s original non-discimination policy (the one CLS was denied access based upon) prohibited discrimination in membership based upon “race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”  The dissent lists a large number of student groups that restricted leadership of those groups to people who agreed to further the group’s message (such as being pro-life, pro-choice, Democrat, Republican, celebrating Vietnamese heritage, etc.), but the school denied “registered student organization” status based on the fact that they required signing a statement of faith which would essentially discriminate on basis of religion and sexual orientation.

It was not until the fact that these other groups were permitted to discriminate came to light that Hastings went back and forced all those groups to amend their policies.  Essentially, Hastings came to the Supreme Court having claimed that it had three separate policies: the non-discrimination policy described above, the all-comers policy that the parties stipulated existed in 2005, and the “some-comers” policy (where groups could require certain behavior, just not behavior that would violate the non-discrimination policy) that Hastings presented in court.  The dissent points out that the majority opinion latches on to the stipulation to wash away this serious problem of what the dissent views as Hastings simply trying to adjust its policy to retroactively justify excluding CLS.

The dissent addresses the second and third distortions by pointing out that CLS suffered serious repercussions from Hastings’ decision.  Specifically, CLS was denied access to the student organization fair (where most students find out about any groups that exist), and despite complying with all of Hastings’ evolving requirements, multiple requests for use of facilities went unanswered until after the date for the requested event had passed (with the president even instructing CLS to request facilities via legal counsel in the future).  As the dissent points out, the case was not about seeking a subsidy, but really about just having access facilities.  For a small group (7 students in 2005), the barriers that Hastings threw up to CLS constructively barred the group from seeking out other Christians in the student body and represented serious restrictions on the students freedom of association.

All of this argument by the dissent is important for this reason:  the case was affirmed as to the all-comers policy, but remanded to the 9th Circuit to determine whether Hastings was applying this policy as a pretext for its intent to discriminate against the viewpoint espoused by CLS.  This is a somewhat small hope simply because this is headed back to the 9th Circuit.  However, much of the record, as highlighted by the dissent, does suggest that Hastings suddenly adopted and later modified the so-called “all-comers” policy as an afterthought to cover up the fact that it had selectively denied access to CLS.  There is a lot in the record to support this assertion, and there is some hope that the 9th Circuit will show some even-handedness in recognizing this bias.

We can hardly be surprised when the world rejects Christians, and Christians can thrive in small groups, but when even large CLS chapters are still only 20 or 30 active members out of hundreds of students on campus, one wonders how easy it will be to find one another if groups like CLS don’t exist.  As a result, I covet your prayers for law students in the future who may be forced to go through all or some of their education deprived of the knowledge of any potential Christian fellowship they might find on campus, and we can pray God’s continuing mercy that practices such as those at Hastings remain few and far between for some time yet.