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Jun 29 2010

Religious Clubs at Public Universities Can’t Exclude Non-Believers

Another 5-4 close one.  Who needs the World Cup when you got Supreme Court justices brawling it out over the Constitution? (OK, I do, also). Anyway, in another contentious split decision, the left side gets a rare win as “Swing Man” Kennedy joins Judge Ginsburg’s opinion in Christian Legal Society v. Martinez, decided yesterday.  Quick synopsis:  Hastings School of Law is part of the University of California’s  splendid public university system.  Hastings has a policy regarding its school organizations that  it calls “All comers.” It means that if the club wants to get  the benefits of official recognition, it must accept any Hastings student that wants to join.  A club that wants to discriminate can do so and still advertise its meetings and events but it won’t receive the benefits of official acceptance.  Official recognition brings the right to use the Hastings name and logo, access to an e-mail address with a link to the law school’s network, office space and meeting rooms, and small grants from student activity fees and university funds.

So along comes a group that calls itself the Christian Legal Society; a Christian legal group called Hastings Christian Fellowship had been part of the campus for over 10 years, but when it decided to join with the national organization CLS, it had to adopt the national by-laws which excludes gays and non-believers from membership.  Once the new by-laws were submitted to Hastings, the school dropped all the endorsement benefits.  Rather than turn the other cheek, CLS sued.

CLS claimed that the policy violated the group’s First Amendment rights to freedom of association and speech. Ginsburg and the others who signed with her disagreed saying the policy is content-neutral and that, if anything, CLS sought to make itself different from the other clubs and sought a greater right than others. Ginsburg also pointed out that the school still allowed it to advertise its emetigns on billboards and to use classrooms so that the restriction was very limted.  This is especially so, she wrote, because social media allows anyone to open up a website and use any number of ISP for email servers.  This is interesting because it is another instance of social media’s impact on a decision. If the university’s benefits were the only way to communicate to all students, it may have been a different result. Also of interest was the citation to many materials that are only available on the web. But I digress.

Justice Stevens wrote a brief concurrence that addressed that this decision was reached because the State was not acting as the State-at-large but rather as the owner of property and that means that while these clubs are public forums they are limited forums that the property owner can control more than if the State was acting Statewide.

Justice Kennedy wrote his own concurring opinion just to highlight that he voted this way primarily because the policy was not based on content it was totally neutral and that if it was in anyway based on content he would have voted the other way.

This decision seemed pretty clear cut to me – publicly funded univesity, neutral, exclude no one-prefer no one policy, clubs could still meet and use classrooms, what’s the likelihood a non-christian would want to join anyway?  Where’s the beef, right?

So I was curious to see what the Four Horsemen of the Apocalypse would have to say about it. Writing for the quartet was Justice Alito.  Alito’s dissent rails against Hastings for changing its position about its policy throughout the litigation. Initially, they stated that clubs could not discriminate against students for constitutionally protected reasons; then that some restrictions on conduct could be permitted; and finally in preparation for the appellate argument both sides entered into a stipulation that when it comes to these clubs, Hastings had an “all-comers” policy.

He argues that except for this stipulation there was no real proof of the all comers policy.  He also felt that since this was the only club in 20 years of the policy that had been disallowed that it was the content of the club’s message that the school did not like.  He said that the Court has never said that “a little viewpoint discrimination” is OK.

But a stipulation is a stipulation. Few experienced trial lawyers would have accepted this stipulation on the central issue of the case.  This major error on CLS’ lawyers’ part was costly. For Alito to try and overlook it now does not fly.  Also, that this was the only club to ever be denied shows that  its new by-laws was the reason. The school has pro-life clubs, pro-choice clubs, Democratic, Republican clubs, etc etc.  All this club had to do was add a sentence that the other clubs had and which was approved by the school :   membership can be denied to students who “exhibit a consistent disregard and lack of respect for the objective of the organization.”

Call me a conspiracy theorist but it seems that this group wanted this issue to get the Supremes rather than make this simple modification to its by-laws.  They perhaps counted on Kennedy to swing to their corner but the school’s neutral content policy (and a bad stipulation by their counsel) won the day.

This ends the Supreme Court’s term until the first Monday in October.  It ended with a contentious few 5-4 decisions from one of the most divided and divisive courts in American history. It marks the end of an era with the retirement of Justice Stevens. What will Elena Kagan’s appointment do to this chemistry? Probably not much.  It will still be important to get Justice Kennedy’s vote though I think I see a few more 6-3  rulings coming our way.

2 comments

  1. Ty Enright

    The case is not seeable through just one set of filters. you write “Justice Stevens wrote a brief concurrence that addressed that this decision was reached because the State was not acting as the State-at-large but rather as the owner of property and that means that while these clubs are public forums they are limited forums that the property owner can control more than if the State was acting Statewide.” That of course flies in the face of other 1st Amendment decisions on Public College campuses. Under this principle, you could stretch practically any kind of control for any reason whatsoever.
    Also the concept (to turn things topsy turvey) that Campus Respublicans on some campus could “swamp” the School Democrats club, take it over, and make of it whatever they wished seems to defeat the purpose of even having a group, if it can be destroyed according to the demographics of any particular campus. Can you defend the corectness of the Young Communists, being swamped and remade by Ayn Randian students with their own mission? The whole thing makes no sense. This is implicit in the decison of Christian Legal Society v. Martinez. That’s two parts of the decison that seem very weak, and possibly bad law. I personally find religious clubs, using what are in effect public funds, to subsidize religious activities, to be sailing into the anti-establishment section of the 1st Amendment, even as it seems that SCOTUS and other courts see religious behaviour in public schools as speech that is of a protected nature, whereas I am not sure that much of this religious expression is not more religious practice, rather that the expression of ideas in an open marketplace. I am not sure I am much taken with with political party clubs either, as if Churches are not allowed as tax exempt institutions, to use their pulpit to campaign for one candidate over another (not if they want to be tax-exempt), then why should the political club benefiting from subsidy of public funds in another tax exempt organization (the University) be protected? (rather in a contrarian way, I think that all such restrictions on speech should be struck down). I think that all speech should be tax exempt, even if we find it odious, even if we find it the expression of the Church or the KKK/Stormfront/Black Muslims. If churches are to be protected as tax free, then all groups and clubs, which are political, philosophical, grass roots lobbyist, should attract equal tax exempt advanatages, and all should be free to come out and say, “down with Obama, or down withg Palin, without being threatened by the IRS. And Public Universities should be protecting the speech of groups of students acting in concert, just as even elementary school students have their first amendment rights recognized. This decision was made on the basis of the unpopularity of anti-homosexual stances, had Anita Bryant tried to Join the University’s Mattachine society, and been regected, we would never have seen her win at any level. But we should not have to actually subsidize any of this with our own funds, as tax payers, even as we should grant tax exemption to all speech except commercial speech.
    In the USA, we seem to have long abandoned free thinking for rigid polarized conformity, where freedom seems to be the right to supress the ideas of another person or group, rather than an opportunity to explore beyond our own rigid bias. Certainly no true disciples of Hillel on Campus or in Churches, Synagogues, or Congresses.
    I don’t know that the decsion is wrong, but it seems conceptually flawed, just as Rowe V Wade seems flawed. Neither do I have much time for Stevens, Breyer, or Sotomayor as exemplars of brilliant Jurisprudence, I prefer poor Mrs Ginsberg, who just lost her husband, and who our hearts might go out to. At least she seems more consistant, and rigorously staunch in her principles than other Scotus members. Presumably Scalia, will be solicitous for her, they are both Opera buffs, who attend together, but he is another Justice who gains kudos for very middle level thinking, and is far over-rated in his work.

  2. Oscar Michelen

    Ty – The key thing for me was that other clubs were allowed to have a clause that excluded folks who “exhibit a consistent disregard and lack of respect for the objective of the organization.” So that would take care of most of the example you give of what would happen if this policy got stretched out to allow Young Republicans to take over the Young Democrats, etc etc. And had this been a State-wide policy then it might have drifted into establishment clause issues. I think the main issue here is this was a college campus trying to come up with a neutral policy to allow all students to join all clubs. This was a much narrower question and Ginsburg I feel was right in trying to keep it as narrow as possible.

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