Just now going through the opinion in Christian Legal Society v. Martinez, which is a significant First Amendment case concerning the Free Exercise clause.
The Court held that the Hastings School of Law "all-comers" policy requiring student organizations to allow any student to join as a member -- including Christian and other religious groups, regardless of whether the student seeking to join is a Christian or not -- was not an infringement on the Free Exercise clause.
This case, issued this morning, is getting pushed off the stage by the decision in McDonald v. Chicago, which is getting a lot of shallow attention because it is on its surface a gun-rights case (when actually it is a case regarding the long-debated federalism issue of whether the Fourteenth Amendment incorporates all the rights of the Bill of Rights).
The decision was written by Justice Ginsburg, and joined by the liberal members, and by Justice Kennedy.
The issue was straightforward:
May a public law school condition its official recognition of a student group — and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?
McDonald, at 1.
The Christian Legal Society ("CLS") argued that Hastings' "accept-all-comers" policy impaired its First Amendment rights to free speech, expressive association, and free exercise of religion by forcing it to accept members who "do not share the organization’s core beliefs about religion and sexual orientation."
CLS wanted to include in its membership only those who shared the group's core beliefs about the teachings of Christ, including that homosexuality is a sin. Well, that's one perspective. Another perspective is that CLS wanted to exclude from its organization those Christians who were tolerant of homosexuality, and who did not accord with the strict orthodoxy of the organization. CLS argued that the policy infringed the right of CLS members to the free exercise of their religious beliefs.
The Supreme Court wasn't buying:
Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to thestudent-organization forum. In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits ofofficial recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeksnot parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’sexpressive activity, however exclusionary that activitymay be. But CLS enjoys no constitutional right to state subvention of its selectivity.
Id. at 2.
The majority did not seek to revise its doctrinal approach to Free Exercise cases, but framed its decision in the context of previous limited-public-forum analysis. That is a fairly complex and labrynthian area of First Amendment analysis that we need not get into here. I suggest poking in to SCOTUSblog -- when it comes back online after the deluge of this last-day-of-the-term flurry -- to see a sharper analysis of this case.
(And if you want a broader, generalist (but eminently readable and fascinating) overview of the Supreme Court's approach to the religion cases in the context of the First Amendment, I commend Jay Wexler's latest book, "Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars" -- a book that is both intelligent and funny)).
Finally, I want to note an argument CLS relied on, which on its face was not an unreasonable one. CLS argued that forcing an all-comers policy on student organizations could lead to the destruction of the purpose of the student organization.
For example, under Hastings' all-comers policy, the Hastings Law Democrats would have to open their membership -- and elections for its leadership -- to right-wing Republicans. The law school's LGBT Legal Rights Group would have to accept as a member -- and let stand for election -- an avowed gay-hater. There could be mischief-making galore, but more importantly, a dilution of the group's purpose and message. As CLS argued: Who speaks on its behalf colors what concept is conveyed.
Again, the Court wasn't buying the Peter Venkman-type argument that Hastings' policy would lead to dogs-and-cats-living-together-mass-hysteria. Justice Ginsburg:
Hastings . . . could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes — and to build this expectation into its educational approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.
Id. at 27.
In short, today the Supreme Court -- including Justice Kennedy -- upheld a general policy that fosters non-discrimination in the funding and promotion of student organizations. For progressives, this decision is cause to celebrate.