After Media Weighs In, Supreme Court Hears Oral Arguments in 'CLS v. Martinez'

This morning, the Supreme Court returned from its April recess to hear oral arguments in Christian Legal Society v. Martinez, a crucial case for the First Amendment right of freedom of expressive association on campus. As frequent Torch readers will already know, we have followed the case closely, and FIRE was joined by Students for Liberty in filing an amici curiae brief with the Supreme Court on behalf of petitioner Christian Legal Society back in February.

Because of the weighty constitutional questions Christian Legal Society v. Martinez presents to the high court, the case has garnered significant media attention from editorial boards and columnists across the country in recent days. FIRE Chairman and Co-founder Harvey Silverglate weighed in on behalf of FIRE with an editorial in the pages of The Wall Street Journal on Friday. Yesterday, the Washington Post's Robert Barnes set the table for today's argument, covering the case's procedural history, interviewing attorneys on both sides, and surveying the issues presented. Barnes' reporting was augmented in yesterday's Post by a thoughtful opinion piece on the case from Jonathan Turley, a law professor at George Washington University and a frequent legal commentator. Turley's useful exploration of the competing interests at stake is worth quoting at length:

CLS v. Martinez is a close and difficult case. The court has to weigh fostering diversity of views vs. combating discrimination. The nation benefits when citizens form groups and advance their ideas. Tax-exempt status is even given to groups to encourage association and free speech -- important pillars of our society. We cannot pick and choose between groups if we are to allow for pluralism.

The same is true with college groups. A campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values. Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations. And as the court stated in Roberts v. United States Jaycees in 1984, "Freedom of association . . . plainly presupposes a freedom not to associate."

While there are strong arguments for upholding the Hastings policy, the CLS was effectively denied recognition because of its religious views -- a troubling practice that could easily extend to other groups. For example, some Muslims following Wahabi principles insist that women must be covered and sit separately from men. Likewise, some Orthodox groups such as Hasidic Jews mandate areas divided by gender and require strict dress codes. To insist that Wahabi or Hasidic groups allow anyone to join, including gay and non-conforming members, would create an obvious problem.

Schools can still adopt a nondiscriminatory policy by funding either all or no student groups. That was the choice the Supreme Court gave the University of Virginia in its Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.

The question in the current case is where to draw the line. Schools such as Hastings are legitimately barred from discrimination in hiring and promotions. However, barring student organizations based on their religious views puts the state in the position of bestowing favored and unfavored status on groups.

We need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group. For example, tax exemption should aim to encourage citizens to participate in our society through groups that deepen public debate. These associations not only help individuals define their own values, they also protect the pluralism that defines our nation. 

This morning, National Public Radio's Nina Totenberg contributed her own overview of the case, complete with interviews with Michael McConnell, former federal appellate judge and current Director of the Constitutional Law Center at Stanford Law School, and Gregory Garre, chair of Latham & Watkins LLP's Supreme Court and Appellate Practice Group. McConnell argued this morning on behalf of CLS; Garre, on behalf of Hastings College of the Law. Totenberg's reporting captures the different frames each attorney sought to advance in this morning's argument: 

Stanford law professor Michael McConnell, representing the Christian Legal Society, says the CLS policy is not discriminatory.

"Not in the sense of being an invidiously discriminatory policy. There is absolutely nothing wrong with groups of Americans gathering together around shared beliefs," McConnell says. "It's OK for feminists to have a feminist club. It's OK for environmentalists to have an environmentalists club, and it's OK for Christians to have a Christian club. That isn't discrimination. It's freedom of association."

Representing Hastings, lawyer Gregory Garre counters that there's nothing that prevents a group from forming around shared beliefs and expressing those beliefs on campus. But if the group wants official recognition and funding, it has a choice.

"If they wish to discriminate in their membership and to deny access to certain students, they are free to do that as well, but they have to forego status as a school-recognized and school-funded group," Garre says. "What CLS is really seeking here is a special status," which is "funds and benefits that go along with being a school-funded and school-recognized group, with an exemption from the rules that apply to every other group."

McConnell disagrees. "It cannot be true that governmental units can deny whatever they classify as benefits, no matter how essential those benefits may be to the survival of an expressive association, on the basis of whatever they label discrimination," he says. "That would mean that tax-exempt status could be denied to Orthodox synagogues because they segregate men from women."

Also this morning, the editorial boards of The New York Times, the Washington Post, and the Los Angeles Times each weighed in with their views about the merits.

The New York Times argued that Hastings should prevail:

Students at Hastings who want to join together in more exclusive arrangements are free to do so. They can form unofficial student groups. But Hastings is right that groups that bear its imprimatur, use its name and logo, and receive public funds must not discriminate.

In 2006, the Federal District Court that heard the case ruled for Hastings, and a three-judge panel of the San Francisco-based United States Court of Appeals for the Ninth Circuit affirmed unanimously. The panel said that the school’s rules were “viewpoint neutral,” since they imposed a requirement of openness on all student groups, and were also “reasonable.” It was right.

The Christian Legal Society is not being denied any First Amendment rights. It is being told that if it wants an official association with a public university and public money, it cannot deny gays, non-Christians or members of any other protected minority equal rights.

When asked to comment on the Times' argument this morning during an interview with Hoppy Kercheval on West Virginia's MetroNews, I pointed out that the Times, like Hastings, had misconstrued CLS' wish to exercise its right to freedom of expressive association as "discrimination," an argument we've made many times here on The Torch. It's disappointing that the Times fails to recognize that under Hastings' absurdly broad definition of "discrimination"—i.e., Hastings' conflation of belief-based "discrimination" with the invidious, status-based discrimination that non-discrimination clauses are meant to eliminate—freedom of expressive association is rendered an empty right.

Luckily, the Washington Post's editorial board understands the consequences of such an expansive definition of "discrimination." In an editorial published today entitled "Politically correct, legally wrong," the editors write:

PICTURE THIS: gay student organizations forced to accept those who believe that homosexuality is an abomination. Student political groups, such as Young Republicans or Young Democrats, compelled to allow members of the other party to vote on policy platforms. A law association for African American students being told that it must let white supremacists run for leadership posts. 

[...]

It is one thing to require that groups that accept school funds and use school facilities give every student the opportunity to attend meetings or explore the virtues of a particular organization. But it is altogether different to require groups to accept as members or leaders even those who disagree with its central beliefs. This cuts at the core of meaningful association; penalizing a group by withholding school benefits only exacerbates the harm.

This is precisely the argument FIRE has made time and time again, and we're pleased to see that the Washington Post understands the potential ramifications of a Hastings victory. Thankfully, the Los Angeles Times' editorial board comes to much the same conclusion: 

The court would do better to confront the original issue in the case: whether the Christian Legal Society engaged in impermissible discrimination on the basis of religion and sexual orientation. It will find the evidence lacking.

As its name suggests, the society certainly favors one religion over others. But civil rights laws don't prevent religious groups from discriminating on the basis of religion, nor does a fair reading of Hastings' anti-discrimination policy. A Christian group that allows only believers to lead Bible study isn't comparable to, say, a constitutional law club that excludes non-Christians.

More to the point of this case, the Supreme Court ruled in 1995 that once a state university decides to subsidize student expression, it may not discriminate against religious groups.

As for the claim that the Christian Legal Society discriminates against gays and lesbians, the organization insists that homosexual students are welcome so long as they affirm -- and practice -- the traditional Christian view that sex must be confined to heterosexual marriage. Though it's true that very few, if any, gay students would fall into that category, the fact remains that the society conditions membership on belief and conduct, not orientation.

Hastings could change the way it treats recognized student groups to emphasize even further that it doesn't endorse their views. For example, all groups could be forbidden from using the college's logo, as they now do, and could be denied reimbursement for travel and other expenses. Still, most law students already recognize not only that student groups speak for themselves but that the intellectual life of a law school campus is enhanced by a conversation between such groups. The Supreme Court shouldn't stifle that conversation.

Reactions from this morning's oral arguments are beginning to trickle in; the Associated Press has an early story documenting the dynamics in play during today's session before the Justices. We'll have much more on the arguments tomorrow, so stay tuned to The Torch.