More on the Supreme Court's CLS v. Martinez Case, Which Asks Whether a Public Law School Can Deny Funding and Recognition to a Student Christian Organization that Excludes Gay Students: A Response to Mr. Baylor
	By MARCI A. HAMILTON
	Thursday, April 22, 2010

In an earlier column for this site on the case of CLS v. Martinez, which is now before the Supreme Court, I argued that a public law school need not grant funding or grant official recognition to a group that excludes gay students from its voting membership and its leadership positions. Since then, Gregory Baylor, who is general counsel for the student group – the Christian Legal Society ("CLS") – has responded to my column here on FindLaw. This week, the oral argument in the case occurred, and in today's column, I will both reply to Mr. Baylor and comment on that argument.

The Procedural Problem with CLS v. Martinez: Why the Court Likely Should Not Have Granted Review

The oral argument in CLS v. Martinez this Monday made one point clear: This case is probably best suited to a "DIG" (a denial for having been improvidently granted). The parties and the Court spent the majority of their argument time debating stipulations, as opposed to debating the legal theory that was intended to be the centerpiece of the case. Notably, Justice Kennedy started the questioning by asking for clarification of the factual record and stating, "What is the case we have here?"

The problem is procedural, and it was apparent almost immediately after the argument by Professor (and former federal Judge) Michael McConnell on behalf of the CLS began: The parties agreed to a stipulation of facts that likely could impede the ability of the Court to reach the issues it has raised.

Hastings Law School, in its briefs and before the Court, stated that it was enforcing an "all-comers" policy – that is, a policy stating that the Law School's student groups, to receive recognition and funding, must accept any and all law students and permit them to serve in any position in the organization. The evidence of the policy was taken from a sworn deposition by a former Dean, and CLS conceded that this was indeed the policy, through a stipulation between the parties. (My guess, though I am not familiar with the strategic decisions made by the parties, is that CLS entered into the stipulations before the case reached the High Court in order to ensure that it obtained a grant of summary judgment, which meant that the case could go up through the system to the Supreme Court more quickly than if a trial had occurred. Entering into such a stipulation is not an unusual tactic for groups like CLS that are seeking to litigate clean test cases, but the tactic can be fraught with peril, as this week's oral argument showed.)

A persistent question at oral argument was whether this was really a facial or an as-applied challenge. (A facial challenge addresses a significant range or all of the potential applications of a statute; an as-applied challenge addresses a statute only as applied to the particular party before the Court.) During the argument, Professor McConnell tried to characterize it as an as-applied challenge, as did Mr. Baylor in his column responding to mine. However, as more than one Justice noted, the stipulations make it appear as though it is, in fact, a facial challenge, because there was no evidence that CLS was treated any differently from any other group, a necessary element of the legal arguments it is raising.

As Mr. Baylor's response to my column makes clear, a key element of CLS's argument is its representation that Hastings would not require the Republican or the Democrat student groups to accept voting members and leaders from students who were devoted to the opposing party. That point raises an interesting legal issue, but not one that is relevant to this case, because – as Justices Kennedy and Ginsburg noted – CLS also stipulated that both the Republican and Democrat clubs do, in fact, permit students from the other party without limitation. As Justice Scalia told McConnell, "if that was [your theory] you should have brought in some – some evidence of – of different treatment of other groups. . . . There is none of that."

CLS cannot withdraw its stipulations now, and it would appear partisan for some of the Justices who seemed inclined to favor CLS's theory, like Chief Justice Roberts and Justice Alito, to attempt to re-craft the factual stipulations in order to benefit CLS. Thus, the situation suggests that a "DIG" may well be warranted here.

The "All Comers" Policy and the Belief/Status Distinction

If the Court does go on to reach the merits of the case, it will have to address the following issue: Justice Scalia indicated that the "all-comers" policy to which the parties have stipulated is viewpoint-neutral. That is, it treats students and groups the same regardless of the views they hold: Under the policy, any student can join any student group. Justice Ginsburg pointed out, too, that the non-discrimination policy is subsumed by the all-comers policy; student groups at Hastings can't exclude any student for any reason, legally discriminatory or not, and still receive recognition or funding. And according to standard First Amendment theory, viewpoint-neutrality is a major advantage under Court doctrine on the regulation of speech and rights of association.

That analysis would strongly suggest that Hastings should win. However, Professor McConnell defended the CLS position by making a distinction between "belief" and "status." On his theory, the all-comers policy could be enforced as to status consistently with the First Amendment: Groups could not exclude students based on their race, gender, sexual orientation, disability, etc. But, he argued, student groups must be permitted to exclude students based on those students' beliefs – pointing to the absolute right to believe whatever one chooses that the Court endorsed in Cantwell v. Connecticut.

Justice Breyer, though, more persuasively, noted that the "all-comers" policy did not prescribe what student groups must believe; it mandated what they must do: Accept any student. That policy, he commented, was general, not belief-specific; it was "not just against religion." Moreover, he suggested, Hastings's policy was actually an attempt to stay out of the business of prescribing or proscribing beliefs, rather than an invasion of the right to believe.

What Does It Mean to Promote Diversity in an Education Setting? More Organizations, Versus Greater Inclusiveness

McConnell repeatedly returned to his doctrinal point, which was that "a designated public forum must be reasonable in light of the purposes of the forum." According to the stipulations, the all-comers policy was intended to increase the diversity of the exchanges of views that occurred in the law school. Thus, McConnell argued, the refusal by the law school to officially recognize and financially support CLS was "silly," "preposterous," and "absurd."

I suppose that his theory was that, by not providing financial support to CLS, Hastings was actually decreasing diversity among student groups, and thus defeating its stated purpose. But on his theory, the law school's policy was simply a policy in favor of supporting as many groups as possible – which itself would be absurd. The law school is not merely trying to generate the maximum number of student groups with its policy.

Justice Breyer pointed out, moreover, that McConnell's interpretation of "diversity" was inapposite in the educational setting. Rather than simply maximize the number of student groups, the all-comers policy was intended to increase exchanges between diverse viewpoints. Essentially, the all-comers policy is supposed to foster a wide-ranging exchange of ideas among those with different viewpoints.

Thus, even though a homosexual student might not be in agreement with CLS's viewpoint that homosexuals should "repent" for their sexual orientation, he or she might well be interested in – and even in agreement with – CLS's views in other areas, such as, to take one example, its view that individuals should wait until marriage to have sex. Or, that student might simply be interested in learning more about CLS's views. Mr. Garre, representing the law school, agreed with that position, and he pointed to the factual record, which showed that there had been a gay member of CLS for a while and that both the member and CLS agreed that the gay member's inclusion had been a useful learning experience for both. Just because a student has some reservations about the beliefs of a group simply does not mean that he or she would not want to be part of the group and even in its voting membership and leadership.

Mr. Baylor has clarified CLS's specific views for me: CLS's view is that homosexuals are welcome to join CLS chapters, but only may be part of the voting membership and leadership if they are repentant for their "sin." So they must be sincerely ashamed of their sexual orientation, and must believe that if they follow their sexual attraction to same-sex individuals, they will be judged accordingly. So, CLS says, it accepts members regardless of sexual orientation, but requires certain beliefs – and, it says, it is entitled to do so, to form its pool of those students eligible to be voting members and leaders.

On this theory, if a homosexual student seeks to join CLS simply in order to learn about another worldview, and likes the group once joining, he or she cannot be a leader of the group. This is where I believe that Hastings, in its papers, should have mounted a stronger defense to its policy in terms of its legitimate and compelling interest in creating an atmosphere of open intellectual exchange. Fortunately, Justice Breyer and Justice Ginsburg brought that view into the discourse at the oral argument, so it is now front and center (and will likely be addressed in the Court's opinion, if the Court does not DIG the case).

Supporting Religious Worship, Versus Supporting Religiously-Oriented Groups

During the oral argument, there were some odd moments, as well, when the discussion veered into the territory of religious worship, as opposed to the non-worship activities of a religiously-oriented student group. On McConnell's and CLS's theory, the law school could be required to financially support worship itself. But Justice Kennedy appropriately brought up the Establishment Clause and separation-of-church-and-state principles.

Even in the current environment – with a Court relatively hostile to the separation of church and state, and groups like CLS intent on treating the notion of separation as evidence of discrimination against religion – there can be no plausible argument that public entities are required to actually subsidize worship. Yet the seeds of those arguments were evident in the CLS position both as expressed in Mr. Baylor's response to my prior column, and in Mr. McConnell's oral argument. In the end, no case yet decided by the Court supports such a theory.

In Academia Especially, Open Interchange Among Students with Varying Viewpoints Is Crucial

The universe that CLS has painted as desirable – and constitutionally mandated – in this case is bleak, from the perspective of academic freedom and engagement. On this view, even among college and law students, who typically are trying out new ideas and approaches to life, Republicans don't want to talk to Democrats, and homosexuals would never want to talk to conservative Christians on any issue. The American university world is Balkanized and the government must financially support those groups that insist on excluding voting members and leaders based on specific, individual beliefs. Experimentation in belief (and in combinations of beliefs) is strongly discouraged and assumed to be of no interest to students; in essence, students who enter higher education with a certain set of beliefs must leave with the very same. That is a formula that is certain to keep America behind the rest of the world in innovation, not to mention intolerant.

In the end, though, I return to the central point of my original column. As Justice Sotomayor pointed out at oral argument, this is not a case about exclusion from campus, or about censorship. The only issue here is whether CLS has a constitutional right to be supported with state money, and to be officially recognized by the state through its law school. As I said before, this is a financial-entitlement mindset, not a liberty argument.

Although the Court might be tempted to DIG this case, ideally it should not. Instead, the Court would do well to go ahead and decide the facial-challenge issue based on the record – and to decide it in Hastings's favor. Such a ruling would preserve the ability of universities to foster and encourage exchanges of differing viewpoints through student organizations. As some of the amicus briefs indicated, the Hastings policy is not unique to Hastings – and why would it be? The bringing together of individuals with differing world views is precisely what higher education is all about.

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.