Will the Christian Legal Society case produce one of the last Stevens opinions?

by on April 15, 2010  •  In Supreme Court

The Supreme Court will hear arguments Monday morning in Christian Legal Society v. Martinez. CLS is challenging the constitutionality of a Hastings Law School policy that requires student organizations to allow all students to participate as voting members and, if elected, to serve as officers, before the group can be formally recognized and get the benefits that flow from recognition. The CLS strategy is to rely heavily on Boy Scouts v. Dale, in which the Court held that the Scouts could not be forced to comply with a state anti-discrimination law that would have required allowing gay men to serve as scoutmasters. There was an impassioned dissent in that case, joined by four Justices. Its author was Justice Stevens, who has just announced his retirement from the Court.

Much of the Stevens dissent cast doubt on whether the Scouts had genuinely adopted a policy condemning homosexual conduct or whether their purported moral beliefs were invented as a rationale to justify exclusion of gays. By contrast, the CLS policy condemning any sexual conduct outside of heterosexual marriage is quite clear. So I don't assume that it's a sure thing that Stevens will rule against CLS in this case, although it's a pretty good bet. 

For example, the Stevens opinion in Dale (530 U.S. 640, 695) argued that

[I]f merely joining a group did constitute symbolic speech; and such speech were attributable to the group being joined; and that group has the right to exclude that speech (and hence, the right to exclude that person from joining), then the right of free speech effectively becomes a limitless right to exclude for every organization, whether or not it engages in any expressive activities. That cannot be, and never has been, the law.

If Justice Stevens is in the majority in the CLS case and Chief Justice Roberts is not, then Stevens (as the senior Justice in the majority) will designate who writes the opinion of the Court. In that situation, my bet is that he will write this one himself. If the votes don't fall out that way, I wouldn't be surprised to see a separate Stevens opinion in dissent, echoing the points he made in Dale.



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