Debates begin on Christian Legal Society case

by on December 15, 2009  •  In Constitutional law, Religion, Supreme Court

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators.  First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution–here UC Hastings Law School–can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise.  Excerpted from Writ:

…[I]n two … recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively….

…[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. …

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is … like the Boy Scouts and the parade organizers in the Hurley case … [But} there is one very important difference between Dale and the CLS case: In Dale…, the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition–and the eligibility for funding that comes with it–that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum….

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger …, the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS–even with a message that can reasonably be said to be homophobic–if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome –>

Tomorrow: Michael McConnell – formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars – responds to Dorf, who then replies.

One intriguing possibility would be a compromise. Official recognition as a student group at Hastings entitles an organization to a variety of benefits, some of which are more clearly expressive than others. For example, only officially-recognized groups have access to the school-wide email system. An attractive approach might be to say that Hastings must give all student groups–including those that violate the non-discrimination policy–access to such methods of communication, but that it can deny direct funding to any organization that refuses to abide by the non-discrimination policy.

That solution would be attractive because, within the context of a university or law school community, the ability of students and student groups to communicate with one another could be fairly taken as a baseline, while subsidization could be treated as entailing a greater level of endorsement by the university or law school.

Unfortunately, this sort of compromise appears to be foreclosed by the Rosenberger decision. There, UVA argued that there is an important distinction between, on one hand, permitting groups to use public property for their own expressive purposes and, on the other hand, the government's funding of private speech. The Rosenberger Court rejected this distinction. Thus, it appears that, on the Court's view, whatever the resource may be–whether classrooms for holding after-hours meetings as in Lamb's Chapel; money for printing as in Rosenberger; or, by extension, bandwidth for sending email as in CLS–the government cannot use the speaker's viewpoint as a basis for allocating it.

Accordingly, CLS v. Martinez will likely be decided on an all-or-nothing basis. Either the Court will view the Hastings policy as neutral and thus permissible, or it will view it as inherently infringing the right to expressive association, and thus impermissible.

Such all-or-nothing reasoning is understandable from a Court charged with fashioning legal doctrine that the rest of us must be able to apply with some predictability. But it is nonetheless unfortunate, because it obscures the fact that cases of this sort are genuinely difficult. CLS v. Martinez poses a conflict between two principles that we rightly value: expressive association and equality. No resolution can fully honor both.


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