CLS v. Martinez: The Supreme Court Rightly Holds that Public Law Schools Can Deny Affiliation and Funding to Religious Groups that Discriminate Against Gay Students
	By MARCI A. HAMILTON
	Thursday, July 1, 2010

This Monday, June 28, the Supreme Court decided Christian Legal Society v. Martinez, striking a blow for higher education in the United States.

As I discussed in a prior column, the Christian Legal Society (CLS) argued that Hastings Law School (a public law school that is part of the University of California system) had discriminated against it. In particular, CLS claimed that the law school discriminatorily refused to place its imprimatur on CLS, or to provide CLS with the funding that student groups typically receive.

Why did Hastings withhold affiliation and funding from CLS? Because CLS's policies exclude homosexuals from positions of full membership or leadership in the organization.

Hastings has a non-discrimination policy -- reflecting California law -- that extends to "race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation," and it deemed the exclusion to constitute sexual-orientation discrimination.

The Court's decision in favor of Hastings is sound at every level, as I will explain.

The Court's Well-Reasoned Decision

Writing for the Court majority, Justice Ruth Bader Ginsburg tested the policy under the Court's speech-forum doctrine. That doctrine generally divides government speech fora into three categories:

(1) the traditional public forum (for example, traditional town squares, public parks, and sidewalks);

(2) the designated public forum (created when the government intentionally opens up space that has not traditionally been dedicated to speech, so that that space can now be used for speech purposes); and

(3) the limited public forum (a forum where the government limits participants and topics as part of the larger purpose or purposes of the space or project).

The first two categories of public fora are subject to searching judicial scrutiny, but the third is subject only to reasonableness review, which must take into account the government's legitimate interests in maintaining the forum.

In CLS v. Martinez, the Court majority correctly deemed Hastings to fall into the third category: As an institution of higher learning, Hastings is a limited public forum with designated purposes.

Accordingly, the Court conducted reasonableness review, while looking toward Hastings's legitimate interests in maintaining the forum it had created. It found that Hastings's policy was reasonable, and its interests in maintaining the forum at issue were legitimate.

More specifically, as Justice Kennedy's concurrence memorably explained, "A vibrant dialogue is not possible if students wall themselves off from opposing points of view." The Court reasoned that Hastings had made a reasonable choice to create an all-comers policy for official student organizations, which forbids any student group from engaging in any kind of illegal discrimination with respect to membership or leadership.

Justice Ginsburg's opinion for the majority cut to the chase in the second paragraph: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. 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." That is the heart of the matter.

The Role the Fact Stipulations Played in CLS's Loss

As my column following the oral argument noted, CLS faced a large hurdle of its own creation when its case came before the Court. It agreed to fact stipulations in the District, or trial, Court that continued to bind CLS throughout the litigation.

The stipulation included an agreement, on behalf of the parties, that "Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organizations, regardless of [her] status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization."

By the time CLS arrived at the Court, though, it had shifted its argument to claim that Hastings' written rule regarding student-group membership would not require a Democratic club to take a Republican.

But it was too late: The Court majority had no time for what it called "CLS's unseemly attempt to escape from the stipulation" of its own making.

The Court's Rejection of the Claim of a Constitutional Right to Receive Equal Funding

The Court further rejected CLS's argument that it has a constitutional right to receive campus funding even if it engages in prohibited discrimination. The Court reasoned as follows: "CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition."

As the Court rightly recognized, this was not a case about compelled speech or belief, but rather a case about a regulation of conduct that is reasonable, legitimate, and related to the goal of the all-comers policy. Justice John Paul Stevens put it nicely in his concurrence: "A free society must tolerate such groups [i.e., those that believe in discriminating against others]. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities."

CLS's attempt to create the impression that it was suffering from state repression of its beliefs and/or practices was particularly weak, as revealed by the Court's listing of its many activities (all conducted without state support): "CLS held weekly Bible-study meetings and invited Hastings students to Good Friday and Easter Sunday church services. It also hosted a beach barbeque, Thanksgiving dinner, campus lecture on the Christian faith and the legal practice, several fellowship dinners, an end-of-year banquet, and other informal social activities."

Moreover, in the Internet era, it is very difficult for any organization -- including CLS -- to argue that it cannot get the word out without receiving funding to do so. Even the traditional student costs of flyers and photocopying are long gone.

The Interesting Schism Between the Majority and the Dissenters

During oral argument, only two members of the Court (Chief Justice Roberts and Justice Samuel Alito) seemed disposed to agree with CLS that it was, indeed, suffering from the unconstitutional suppression of its beliefs and/or practices. Justice Antonin Scalia more than once pointed out that CLS had agreed to a stipulation that blocked its arguments. But Justice Alito still succeeded in writing a dissenting opinion that brought Justices Scalia and Clarence Thomas aboard.

In fact, the majority and dissent are addressing two very different cases. The majority addressed a facial challenge to the constitutionality of an across-the-board all-comers policy, which is what CLS had brought to the Court, in light of its stipulations. (A facial challenge looks to the lion's share of a policy's applications, not just to the particular application of the policy to the person or group before the Court.) The dissent, though, was willing to brush aside the stipulations and treat the case as an as-applied challenge, limited to this single application of the all-comers policy.

Bringing in facts beyond the record that was addressed by either the Ninth Circuit or the District Court, the dissent would have held Hastings's policy unconstitutional, essentially because it imposed a burden on CLS's beliefs for the group to be required to include homosexuals when granting full membership or providing access to leadership positions in the group.

A Fight Over Rights -- But the Rights CLS Is Claiming Would Be Novel Ones

As my first column pointed out, this case forced the Court to wade through a culture war of the first order. The fight is being fought over competing rights claims, but that does not mean it is being fought over existing rights.

The Court's decision was greeted by CLS, religious groups, and Professor Michael McConnell, who argued the case, as though it was a severe setback in terms of existing rights. They know better, though.

The truth is that they are fighting to push the envelope and create a novel right to obtain government privileges, even if the exercise of such privileges will violate existing discrimination laws. There was a time when there was general agreement that governments generally may not subsidize religious activity. That was the heart of James Madison's observation in his Memorial and Remonstrance that "not three pence" should be paid by government funds for religious training. Now religious groups are arguing that they have a constitutional right to financial support, and that the First Amendment is actually creates entitlements.

No Supreme Court case has ever gone that far, and, in fact, the majority's opinion in CLS v. Martinez does not change the Court's public forum doctrine in any meaningful way. Rather, it is a straightforward application of that doctrine, which means that law professors likely will either discuss CLS in First Amendment classes in place of other limited-public-forum cases, or simply leave it off the syllabus on the ground that, although correctly decided, it does not add much to the curriculum.

In 1990, when the Supreme Court decided Employment Div. v. Smith, the same voices proclaimed to the world that the Court had always applied strict scrutiny in every free exercise case, and that, therefore, the decision was a disaster for religious liberty. Smith held that there was no exemption to a neutral, generally-applicable prohibition on peyote use for instances where the drug was used in Native American religious ceremonies. That decision, too, was claimed to be a disaster and an aberration from doctrine.

Now, twenty years later, we know full well that the Court had not frequently applied strict scrutiny in such cases, and that it has even more rarely used that standard in favor of a religious litigant. Professor McConnell gave a talk at NYU Law School before being confirmed for the Tenth Circuit saying that the correct standard is probably "intermediate scrutiny," not the strict scrutiny he championed on the heels of Smith. The claims immediately following Smith were exaggerations to put it politely. We also know that the world has not ended as a result of applying neutral, generally applicable laws to religious believers and organizations. To the contrary, we have seen important and crucial movements forward in the protection of those harmed by religious entities, especially child-sex-abuse victims.

The hyperbole in response to the CLS decision is no different from the hyperbole that followed Smith. But at least one can hope that the Chicken Littles of religious liberty will have lost some of their credibility by now.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.