Supreme Court Rejects Christian Legal Society Challenge to Hastings Law School's Denial of Recognition

In a hotly-argued 5-4 ruling, the United States Supreme Court has rejected the Christian Legal Society’s First Amendment challenge to a decision by the Hastings College of Law of the University of California to deny "registered student organization" status to a CLS chapter at the law school. Christian Legal Society v. Martinez, No. 08-1371, 561 U.S. ___, 2010 Westlaw 2555187 (June 28, 2010). Justice Ruth Bader Ginsburg wrote the opinion for the Court, which was joined by Justices John Paul Stevens, Anthony M. Kennedy, Stephen Breyer, and Sonya Sotomayor. Justices Stevens and Kennedy also wrote separate concurring opinions. Justice Samuel Alito wrote a dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. 

Outlaws, the LGBT student organization at Hastings, intervened in the case, represented by co-counsel National Center for Lesbian Rights and Jenner & Block.  Various other civil rights groups filed amicus briefs in the case, and Lambda Legal's amicus brief was specifically cited in the Court's opinion.

The sharp arguments between the justices over their alternative conceptions of the case surfaced in some pointed language by Ginsburg, who accused Alito of "indulging in make-believe" and at one point describes the dissent’s analysis as "warped." Alito, in turn, describes the majority opinion as "misleading" and states his hope that it will turn out to be an "aberration." What the majority views as a straightforward application of its "limited public forum" First Amendment jurisprudence, the dissent sees as an important battle in the culture wars and an unfortunate victory for "politically correct views" on university campuses.

In 2004, a small group of Hastings Law Students petitioned the school to recognize their proposed chapter of the Christian Legal Society as a registered student organization. They submitted a copy of the by-laws, which incorporated the national Christian Legal Society’s requirement that members subscribe to a Christian statement of faith and abstain from any sexual activity outside of heterosexual marriage. This later requirement was expressed, in part, as a rejection of anybody who engages in "unrepentant homosexual conduct." In effect, students who were not willing to swear to a particular version of orthodox Christian belief or who identified as gay would be excluded from membership in the chapter.

The Hastings administration refused to designate CLS as a registered student organization, citing the school’s non-discrimination policy, which includes a prohibition on discrimination based on religion or sexual orientation. The administration informed the CLS students that only student organizations that made membership available without discriminating based on religion or sexual orientation could be officially registered. Registration is a prerequisite to various benefits, such as use of campus facilities and participation in various activities, such as participation in the annual student organizational fair, and eligibility for student organization funds. The administration informed CLS that they would be allowed to meet on campus, but would have to use general communications media and would not be eligible for student activity funds (which are drawn largely from activity fees paid by students).

When CLS representatives pointed out that there were other registered student organizations whose by-laws required students to share certain beliefs (such as the Hastings Democratic Caucus and the La Raza Student Association), the administration contacted those organizations and told them they would have to revise their by-laws to eliminate such requirements. No other organization was disqualified, and, according to Alito’s dissent, CLS is the only student organization in the history of Hastings Law School to have been denied registered student organization status. Alito also highlights record evidence showing that CLS’s attempts to use campus facilities have been thwarted at times by tardy responses from law school administrators.

CLS sued to compel their recognition, arguing that the school’s application of the non-discrimination policy in this instance amounted to discrimination against CLS on the basis of religion. As the argument goes, by imposing a requirement upon a religious organization that it open its membership to non-believers or those who defy the organization’s religiously-based sexual conduct code, the law school was violating the free exercise clause of the First Amendment, and discriminating against CLS.

The federal district court rejected CLS’s argument, finding that the law school’s non-discrimination policy in its application to this case was content-neutral. When CLS appealed the district court’s ruling to the 9^th Circuit, that court saw the case as being governed by its relevant recent rulings on similar cases from other schools, and affirmed in an unpublished one-paragraph opinion, citing the other cases and characterizing Hasting’s policy as reasonable and content-neutral.

At an early point in the litigation, CLS and Hastings stipulated that Hastings requires registered student organizations to "allow any student to participate, become a member, or seek leadership positions in the organization, regardless of status or beliefs." This policy, which the Court characterized as the "all comers" policy, proved a major point of contention between the majority and the dissenters, with Alito arguing that it is actually a "some comers" policy because student organizations are allowed to impose membership requirements, so long as they don’t involve the characteristics listed in the non-discrimination policy. Thus, Alito argues, student organizations are allowed to discriminate on some grounds and not others, destroying the "neutrality" of the policy and falling afoul of the Court’s First Amendment jurisprudence. Indeed, Alito argued, the non-discrimination policy is itself discriminatory against religious groups since it requires them to admit into its ranks those who disagree with its religious doctrine and messages as a condition of participating equally in campus life.

Justice Ginsburg rejected this characterization of the case, arguing that CLS was seeking to be exempted from the school’s policy – which echoes California state law – banning discrimination based on religion or sexual orientation. This is reminiscent of the argument about "special rights" versus "equal rights" that conservatives raise in opposition to gay rights laws, claiming that gay people are seeking special rights to government support, while gay proponents argue that they are merely seeking equal treatment with non-gay people by the government."CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy," she wrote. "The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity."

Under the Court’s "limited public forum" jurisprudence, a public university is deemed to be different from such traditional public forums as streets and town squares. In a traditional public forum, the government can seek to preserve order and prevent violence but basically must tolerate all kinds of speech, including offensive and hateful speech. A "limited public forum" is different. A government agency, such as a state-funded law school, may place certain limits on access to its property consistent with the mission of the institution. It is by now uncontroversial, for example, that public schools can require that only students in the institution are allowed to be members of recognized student organizations, and that student organizations not undertake activities that conflict with the mission of the school.

Justice Ginsburg noted the distinction between this case and Boy Scouts v. Dale, in which the Court ruled (by a 5-4 vote) that the state of New Jersey could not compel Boy Scout chapters in the state to admit gay people as members. Ginsburg pointed out that the CLS chapter at Hastings was free to exclude gays from membership, but it was not entitled to do so as a registered student organization eligible to use tax-payer funded facilities and receive funds drawn from activity fees paid by all students, including those who would be excluded from membership. The Boy Scouts, by contrast, is a private organization which the Court has ruled is free to exclude people whose inclusion would, in the Scouts’ judgment, undermine their expressive message. (In dissenting opinions in Dale, members of the Court pointed out the intellectual incoherence of this position. What if the Scouts’ felt that their message would be subverted by being required to include people of color in their membership? Would they then enjoy a First Amendment right to discriminate based on race?)

In the CLS case, the Court found that the balance between the free speech and free exercise rights of the CLS members and the law school’s interest in having a non-discriminatory limited public forum among its registered student organizations was appropriately served by allowing the school to withhold registered status while allowing CLS to exist at Hastings without the imprimatur of official recognition or receipt of official benefits. The Court emphasized that Hastings did not prohibit CLS from meeting on campus, but denied them the privileges made available to registered organizations in using designated communications media and having priority on use of law school space for activities. The Court found that the school’s policy of requiring that registered organizations be open to "all students" was reasonable and content-neutral.

The dissenters, on the other hand, found the policy to be discriminatory because it conditioned full participation in the law school community on requiring the CLS members to accept unwanted members. One of CLS’s arguments was that requiring it to accept non-Christians and gays could open the organization to being subverted by a covert campaign of non-believers and gay people joining and then installing themselves as officers. The majority dismissed this as purely hypothetical, pointing out the unlikelihood that this would occur or could succeed, but the dissent treated it as a real concern.

Stevens wrote separately to take on Alito’s argument that the law school’s non-discrimination policy was itself discriminatory, a point that Justice Ginsburg did not feel was necessary to take on in any detail in the majority opinion. "As written," wrote Stevens, "the Nondiscrimination Policy is content and viewpoint neutral. It does not reflect a judgment by school officials about the substance of any student group’s speech. Nor does it exclude any would-be groups on the basis of their convictions. Indeed, it does not regulate expression or belief at all." In a footnote, he rejected the dissent’s argument that "a rule excluding those who engage in ‘unrepentant homosexual conduct’ does not discriminate on the basis of status or identity," commenting, "Our First Amendment doctrine has never required university administrators to undertake the impossible task of separating out belief-based from status-based religious discrimination."

Stevens drew a telling parallel between the oppression that has sometimes been suffered by religious minorities and by sexual minorities as he took on Alito’s argument that the Hastings policy was not really content-neutral because it banned some forms of discrimination and not others. Stevens wrote, "What the policy does reflect is a judgment that discrimination by school officials or organizations on the basis of certain factors, such as race and religion, is less tolerable than discrimination on the basis of other factors. This approach may or may not be the wisest choice in the context of a Registered Student Organization (RSO) program. But it is at least a reasonable choice. Academic administrators routinely employ antidiscrimination rules to promote tolerance, understanding, and respect, and to safeguard students from invidious forms of discrimination, including sexual orientation discrimination. Applied to the RSO context, these values can, in turn, advance numerous pedagogical objectives." In a footnote aside, linked to his reference to sexual orientation discrimination, Stevens commented, "Although the dissent is willing to see pernicious antireligious motives and implications where there are none, it does not seem troubled by the fact that religious sects, unfortunately, are not the only social groups who have been persecuted throughout history simply for being who they are."

Stevens also noted that the dissent seemed to have lost sight of the Court’s traditional distinction between intentional discrimination and the discriminatory side-effects of neutral policies. While it was true that Hastings’ content neutral ban on religious and sexual orientation discrimination might incidentally burden CLS, this was not a burden that would be recognized as violating First Amendment norms, relating back to the Court’s controversial Employment Division v. Smith case, in which it held that neutral laws of general application could be applied to religious organizations, even though they imposed an incidental burden on free exercise. Interestingly, this approach, adopted in a case involving Native American religious use of peyote, was the brainchild of conservative members of the Court, some of whom joined Alito’s dissent.

Justice Kennedy’s concurrence expanded on various points from the majority opinion without presenting any separate reasoning, which he acknowledged in his closing sentence, stating: "These observations are offered to support the analysis set forth in the opinion of the Court, which I join." Most of Kennedy’s opinion amplified his view about the range of discretion afforded to educational administrators in their decisions about how to encourage a campus where alternative points of view are respected and thus contribute to the educational process."

Perhaps Kennedy felt a need to write separately because he was clearly the "swing vote" that made the majority opinion possible. All four of the major decisions released on June 28, the final date of the Court’s 2009-2010 term, were 5-4 rulings with Kennedy in the majority, but this is the only one where he was abandoning his fellow conservatives to help the moderates make up their majority. (In the other cases, Kennedy joined in finding that state and local gun laws are subject to attack under the 2^nd Amendment, that a key provision of the Sarbanes-Oxley law regulating the practice of corporate accounting was unconstitutional, and that patent law could be used to protect business methods, although the particular method at issue in the case did not qualify for such protection.)

Alito’s lengthy dissent, longer than Ginsburg’s opinion for the Court, sharply disputed the Court’s view of the facts and the issues at stake, seeing the case as a major challenge to the full participation in campus life by Christian students. He argued, in effect, that campus policies banning religious and sexual orientation discrimination are an unconstitutional attempt by public universities to impose liberal political correctness on dissenting religious students. "I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country," he wrote. "Even those who find CLS’s views objectionable should be concerned about the way the group has been treated – by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration."

That four members of the Court signed Alito’s dissenting opinion shows the narrow thread by which the Supreme Court supports gay discrimination claims in the face of religious opposition, helping to explain why LGBT political and legal groups submitted searching questions to the Senate Judiciary Committee to be posed to Supreme Court nominee Elena Kagan, whose confirmation hearings coincidentally began shortly after the Court closed its final public session of the Term.

Comments

[Mad Professah]

I predicted CLS would lose. Hurray!

[Gary Michael Coutin]

Hastings College is a private trust and not a public school. Foltz v. Hoge, 28 Cal. 54 (1879).

[Art Leonard]

Well, let's not stick our heads in the sand and assume that nothing has happened since 1879. Hasting is now a unit of the University of California and as such is bound by the same constitutional standards of any other public school.