Supreme Court Upholds UC Hastings Law School's Decision Not To Recognize Or Fund Christian Legal Society Because Of Their Membership Policy

The Supreme Court in the 5-4 decision of Christian Legal Society v. Martinez was not stupid enough to simply actually say that UC Hastings School of Law has a right to discriminate against the Christian Legal Society ("CLS") because of that group's viewpoint. The law school group passed a resolution that refused to allow as members that who led “a sexually immoral lifestyle,” which in CLS's view, included engaging in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” The focus of the membership policy by the media has been that it excludes open homesexuals, but technically it also excludes anyone who engages in pre-marital sex. What the Court did rule was that a public school's "all-comers" policy is Constitutional according to the First Amendment's guarantee of free speech. An "all-comers" policy is one that says that any school group must admit any student that wishes to be a member. This is considered to be more viewpoint neutral than a non-discrimination policy that would specifically refuse to recognize or fund a student group like all other student groups are because the group refuses to admit open homosexuals as members. The Supreme Court ruled in an opinion by Justice Ginsburg that "compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum."

However, Justice Samuel Alito's dissent, points out some very obvious flaws with the Court's analysis. For one, the law school's original and expressly stated reason for treating CLS different than any other group was because the school said it violated their non-discrimination policy. The "all-comers" policy justification was picked up later, after it had appeard in a deposition, and only because the school realized that the Supreme Court would likely reject the refusal to recognize CLS if that was the basis. In other words, it was a sham from the start, a contrived legal pretext, which the Supreme Court has now allowed to provide Hastings with cover for there mistreatment of CLS because the school disagreed with conservative Christian religious views. As Alito explains, the Court simply freed itself "from the difficult task of defending the constitutionality of either the policy that Hastings actually—and repeatedly—invoked when it denied registration, i.e. , the school’s written Nondiscrimination Policy, or the policy that Hastings belatedly unveiled when it filed its brief in this Court." This was despite "[o]verwhelming evidence" showing "that Hastings denied CLS’s application pursuant to the Nondiscrimination Policy and that the accept-all-comers policy was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began." The law school knew all too well that Supreme Court precedent states that a public "university must maintain strict viewpoint neutrality" and that this "requirement of viewpoint neutrality extends to the expression of religious viewpoints."

The dissent however even takes on the majority on its ground and persuasively points out why the all-comers policy should not have been upheld. As Alito explains, "[t]he adoption of a facially neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination." In this case "CLS has made a strong showing that Hastings’ sudden adoption and selective application of its accept-all-comers policy was a pretext for the law school’s unlawful denial of CLS’s registration application under the Nondiscrimination Policy."

Justice Alito also puts forward a common sense argument that Ginsburg simply ignores. He writes, "One final aspect of the Court’s decision warrants comment. In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its mes-sage, the Court states that the policy would permit a registered group to impose membership requirements 'designed to ensure that students join because of their commitment to a group’s vitality, not its demise.' Ante, at 27. With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s 'demise' (who may be kept out) is hopelessly vague… The possibility of such takeovers, however, is by no means the most important effect of the Court’s holding. There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization. See Brief for Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society) et al. as Amici Curiae 19 (affirmance in this case 'will allow every public college and university in the United States to exclude all evangelical Christian organizations'); Brief for Agudath Israel of America as Amicus Curiae 3, 8 (affirmance would 'point a judicial dagger at the heart of the Orthodox Jewish community in the United States' and permit that community to be relegated to the status of 'a second-class group'); Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae 3 (affirmance 'could significantly affect the ability of [affiliated] student clubs and youth movements … to prescribe requirements for their membership and leaders based on religious beliefs and commitments'). This is where the Court’s decision leads. "

Alito is correct when he states, "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... 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." Tweet