Ninth Circuit hears argument in Christian Legal Society suit against Hastings Law School

by on March 12, 2009  •  In Religion

On Tuesday the Ninth Circuit heard argument in an important case pitting religious liberty against lgbt civil rights.  In Christian Legal Society v Kane, CLS sued the UC-Hastings Law School alleging that it had a right to discriminate against lesbians and gay men in its criteria for voting membership in the organization. Judges Kozinski, Hug and Bea comprised the panel.

UPDATE: In the case referenced below – Truth v Kent School Dist – the Alliance Defense Fund has just filed a cert petition on behalf of Truth, arguing that the Ninth Circuit erred and that the case is covered by Boy Scouts v. Dale.

Hastings Professor Calvin Massey attended the oral argument and blogged about it at Faculty Lounge. Here is the bulk of his report:

As is true of many universities and law schools, Hastings subsidizes officially recognized student groups by providing access to school faclities, e-mail lists, mail folders, and money.  To obtain official recognition and receipt of those subsidies a student group must be open to all Hastings students, regardless of (among other things) their religion or sexual orientation.  The Hastings chapter of CLS allows any Hastings student to attend meetings but limits voting rights and leadership roles to students who profess their belief in Jesus Christ as savior and who affirm that they are not practicing homosexuals.  (CLS believes that homosexual conduct is incompatible with their conception of Christianity, a belief that is not held by many Christian denominations, but which is generally held by fundamentalist Christian sects.)  Accordingly, CLS was denied official recognition.  A federal district court granted summary judgment to Hastings (the Lexis report of the opinion is here).  While the CLS appeal was pending a Ninth Circuit panel decided Truth v. Kent School District, 542 F. 3d 634 (2008) (opinion here), in which a public high school denied recognition and funding to a Christian religious group called Truth.  The court said that the school had created a limited public forum but concluded that application of a state non-discrimination policy constituted a viewpoint-neutral restriction of the forum that was reasonable in light of the forum's purposes. 

      [At] [t]oday's argument, [Judge]  Kozinski wanted to know why the CLS case was different from Truth. Timothy Tracey, arguing for CLS, stressed that the Hastings rule was a substantially greater interference with CLS's right of expressive association than the denial of recognition to Truth.  Kozinski observed that CLS could freely exercise its speech and associational rights; it just wasn't getting a subsidy.  Ethan Schulman, arguing for Hastings, stressed that the non-discrimination policy was even-handed — it applied to all student groups — and was thus viewpoint-neutral.  Judge Bea agreed that this was so, and expressed some skepticism about the wisdom of a policy that required student Democrats to accept Republican members, and vice versa.   Judge Kozinski observed that while the impact of the Hastings rule had no impact on the expressive association of, say, the Chess Club, it bites deeply into the expressive association of religious groups.  Kozinski inquired of counsel whether it might be prudent of the panel to delay submission of the cause until the Supreme Court disposes of a pending cert. petition in Truth.  Tracey thought this might be wise; Schulman objected. 

There's also a story in The Recorder.

You can listen to the oral argument here.

IMHO, this case has a very good chance of getting to the Supreme Court.


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