Christian Legal Society Chapter v. Martinez (08-1371)
Appealed from the U.S. Court of Appeals for the Ninth Circuit (Mar. 17, 2009)
Oral argument: Apr. 19, 2010
FIRST AMENDMENT, FREEDOM OF ASSOCIATION, DISCRIMINATION
The Hastings Christian Legal Society (“CLS”) required that members agree with its core religious beliefs and pledge to live accordingly. Due to this requirement, the University of California-Hastings College of Law refused to recognize CLS as a registered student organization. Specifically, CLS’s membership requirement violated a nondiscrimination policy prohibiting registered student organizations from discriminating on the basis of religion or sexual orientation. CLS argued that Hastings violated its First Amendment right to free association and free exercise of religion by denying it an exemption from the nondiscrimination policy. The Ninth Circuit rejected CLS’s claims, holding that the school’s policy was viewpoint-neutral and reasonable in light of the school’s educational mission. The Supreme Court’s decision will settle a circuit split over whether a public school can require a religious student organization to open its membership to all students, regardless of their beliefs.
Whether the Ninth Circuit erred when it held, directly contrary to the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.
Whether a state law school may officially require that a student organization make its membership open to all students as a condition of receiving certain benefits associated with official recognition.
Respondent University of California-Hastings College of Law (“Hastings”) is a public law school in San Francisco. See Brief for Petitioner, Hastings Christian Legal Society (“CLS”) at 2. Hastings maintains a program to support registered student organizations (“RSO”), providing, among other benefits, funding and access to school facilities. See Brief for Respondent, Hastings College of the Law at 3. In order to qualify as an RSO and receive support from the school, organizations are required to follow a non-discrimination policy forbidding unlawful discrimination based on race, religion, sex, or sexual orientation. See id. at 4. While RSOs may impose neutral membership requirements, “status or beliefs” cannot serve as grounds for exclusion. See id. at 5. Unregistered groups may still meet on campus in unused public spaces, as well as use certain bulletin boards, email, and other means of electronic communication to contact students. See id. at 8–9.
Petitioner Hastings Christian Legal Society is affiliated with the national Christian Legal Society, a religious organization devoted to providing support and counseling to Christian law students and, generally, promoting Christian values in the legal profession. See Brief for Petitioner at 5, 8. The membership policy of CLS states that “unrepentant participation in or advocacy of a sexually immoral lifestyle . . . may be regarded by CLS as disqualifying such an individual from CLS membership”; the “immoral lifestyle” restriction concerns all sexual conduct outside of marriage, including adultery and homosexual conduct. See id. at 7. After CLS applied for recognition as an RSO, Hastings informed CLS that it would need to amend its membership policy to comply with the religion and sexual orientation provisions of the law school’s non-discrimination policy before becoming an RSO. See id. at 11; Brief for Respondent at 6.
CLS sued, arguing Hastings violated CLS’s right to freedom of association, free speech, and free exercise of religion under the First Amendment by refusing to grant CLS an exemption to the nondiscrimination policy. See Brief for Petitioner at 12; Brief for Respondent at 13. The district court rejected CLS’s free speech claim because the school’s policy was viewpoint-neutral in that it was generally imposed on all student organizations and that the policy furthered Hastings’ educational mission. See Brief for Respondent at 14. The district court also rejected CLS’s freedom of association claim because Hastings was not directly ordering CLS to admit certain students but only placing conditions on using parts of its campus as a forum. See id. The district court also rejected CLS’s free exercise claim on the ground that the school’s policy itself did not single out religious beliefs. See id. at 15. The Ninth Circuit Court of Appeals affirmed the district court’s decision, holding that the school imposed its open membership rule on all student groups and that, therefore, the rule was view-point neutral and reasonable. See Brief for Petitioner at 16.
The Supreme Court granted certiorari to decide whether it is constitutionally permissible for a public school to deny recognition to a religious group because the group requires its members to agree with its core beliefs. See Question Presented.
The First Amendment protects the right to free association. This right prohibits the government from burdening the right to associate with like-minded people to further shared goals and beliefs. See U.S. Const. amend. I. Implicit in the First Amendment is the right for groups of people to assemble together to express ideas (“expressive association”). See Brief for Petitioner, Hastings Christian Legal Society at 26. This case allows the Supreme Court to settle a circuit split over the question of whether a public law school may deny recognition to a religious student organization because it did not comply with the school’s anti-discrimination policy. See Question Presented. Present is a disagreement over whether a registered student organization (“RSO”) serves as a representative of a single viewpoint in the larger campus community, or whether the RSO itself is a forum for debate.
Petitioner, Hastings Christian Legal Society (“CLS”), contends that the school’s requirement that student organizations admit all students, without regard to beliefs, violates CLS’s right to expressive association. See Brief for Petitioner at 26. CLS argues that this restricts access to a “public forum” for speech. See id. at 21–22. Fourteen states contend that prohibiting CLS from exercising its right to expressive association would undermine the state goal of promoting a diverse range of thought on the campuses of its public schools. See Brief of Amici Curiae the States of Michigan, Alabama, et al. (“States”) in Support of Petitioners at 13. The States further emphasize the importance of protecting diverse thoughts and active debate in fostering the marketplace of ideas at large. See id. at 12. The CATO Institute points out that, generally, the only permissible restrictions on the freedom of association are those which have to do with the risks of coercion and monopolies or otherwise threaten public health and safety. See Brief of Amicus Curiae the CATO Institute in Support of Petitioner at 11.
In contrast, Respondent Hastings College of Law emphasizes that the forum for speech created at the school by its RSO program is a limited one and thus is subject to viewpoint-neutral restrictions, provided they are reasonable in light of the purpose served by the forum. See Brief for Respondent, Hastings College of the Law at 27. Hastings contends that its policy is also permissible because it involves the government’s ability to attach reasonable conditions in order to participate in government funded programs. See id. at 24. The Association of American Law Schools (“AALS”) emphasizes the importance of an open membership policy for student organizations because of the necessity of providing students the opportunity to learn from peers through their differences as well as their commonalities. See Brief of Amicus Curiae the Association of American Law Schools in Support of Respondent at 8. Similarly, the American Bar Association (“ABA”) argues that Hastings’ policy is consistent with a school’s interest in fostering an environment of active participation in student activities and in obtaining a diverse student body. See Brief of Amicus Curiae the American Bar Association in Support of Respondent at 8.
According to CLS, the right of a group to limit its membership to those sharing its viewpoints is at the core of the First Amendment right to association. See Brief for Petitioner at 27. CLS contends that permitting the school to infringe upon this right will have the effect of making smaller or more unpopular groups vulnerable to being suppressed by larger groups through takeover or harassment. See id. at 29–30. Smaller groups would be particularly vulnerable because of the ability of larger groups to “sabotage” the membership and leadership of the smaller groups by forming a voting majority. See id. at 28. The Foundation for Individual Rights in Education and Students for Liberty expresses concern that applying a nondiscrimination policy in this manner will threaten all student organizations centered around shared beliefs, whether religious, political, or some other ideology, by essentially eliminating the right to expressive association. See Brief of Amici Curiae the Foundation for Individual Rights in Education (“FIRE”) and Students for Liberty in Support of Petitioner at 13. They argue that protecting the right to expressive association in schools is necessary in order to preserve the diversity of viewpoints on campus. See id. at 8, 13. In other words, amici argue that opening voting to the entire campus community creates a situation whereby only certain viewpoints shared by a majority of the campus community (whatever that majority happens to be) would be officially recognized and funded (i.e. RSO). See id. at 13.
The AALS asserts that permitting a court to intrude into a school’s policies could jeopardize a slew of other school regulations, seriously limiting the Supreme Court’s customary deference to a school’s authority to impose reasonable regulations in order to further its educational mission. See Brief of AALS at 24–25. Furthermore, the National LGBT Bar Association and 55 LGBT Law Student Organizations emphasize that Hastings’ refusal to permit discrimination is necessary to further society’s interest in equal treatment, especially in light of the long history of discrimination against gays and lesbians. See Brief of Amici Curiae the National LGBT Bar Association, et al. in Support of Respondent at 11. They contend that promoting equal treatment for all in a law school is particularly salient because of the need to instill the value of nondiscrimination in law students in order to eliminate the discrimination that still exists within the legal profession. See id. at 12. The American Civil Liberties Union (“ACLU”) and the National Education Association (“NEA”) add that CLS’s claim to a religious exemption from a neutral nondiscrimination rule has potentially far-reaching consequences in light of a long history of religious beliefs being used to justify differential treatment on the basis of race, gender, national origin, and sexual orientation. See Brief of Amici Curiae the American Civil Liberties Union, et al. in Support of Respondent at 27. They maintain that CLS’s claim fundamentally misunderstands the purpose of nondiscrimination laws, which is to ensure that all people are able to participate in civic life, regardless of the reasons that some people might have for excluding them. See id. at 33.
The University of California-Hastings College of the Law (“Hastings”) nondiscrimination policy prohibits any Registered Student Organization (“RSO”) from discriminating “unlawfully on the basis of race, color, religion, national origin . . . or sexual orientation.” See Brief for Petitioner, Hastings Christian Legal Society at 9. The Christian Legal Society (“CLS”) argues that Hastings’ policy is viewpoint-discriminatory. See id. at 42. Thus, CLS argues the policy is subject to strict scrutiny, requiring a compelling government interest. See id. However, CLS maintains that the government has no legitimate interest in prohibiting people from organizing around shared religious beliefs or from selecting leaders based upon religious views. See id. at 43–44. Hastings contends that their policy is constitutional, based on the policy’s viewpoint-neutrality and the reasonableness of its conditions. See Brief for Respondent, Hastings College of the Law at 28.
Respondent-Intervenor Hastings Outlaw echoes many of the same arguments as Hastings, but stresses that the Supreme Court’s writ of certiorari was improvidently granted. See Brief for Intervenor-Respondent, Hastings Outlaw (“Outlaw”) at 25. Outlaw asserts that CLS had already stipulated that Hastings’ policy requires RSOs to allow any student to seek leadership positions regardless of their beliefs. See id. at 20. Outlaw contends that CLS only now raises arguments over the meaning of the policy, after CLS had already admitted that the policy did not discriminate based on one’s belief. See id. at 21. However, Outlaw points the Court’s attention to the rule that “[generally,] a stipulation of fact . . . is controlling on the parties and the court is bound to enforce it.” See id. (quoting Fisher v. First Stamford Bank & Trust Co., 751 F.2d 419, 523 (2d Cir. 1984)).
CLS argues that Hastings’ policy unconstitutionally excludes their local chapter from participating in a public forum, thus infringing on their First Amendment right to expressive association. See Brief for Petitioner at 26. CLS asserts that participation in a campus forum is necessary for the group to continue functioning in the student community. See id. at 23. Respondent Hastings argues that the state can attach reasonable conditions to any program it funds, provided the conditions do not create a coercive environment. See Brief for Respondent at 25. Hastings argues that a public university is a limited forum for student speech, and thus, viewpoint-neutral restrictions on speech are constitutional. See id. at 27.
CLS argues that allowing “unrepentant” homosexuals into their leadership and voting membership is detrimental to their message and poses a severe burden on their ability to associate freely. See Brief for Petitioner at 32; 34–35. CLS stresses that its requirements for leadership positions are not based on conduct, but on religious/moral belief, and the prohibition on sexual discrimination infringes on their right to maintain that belief. See id. at 34–35. The belief that “unrepentant” homosexuality is morally wrong does not mean that CLS seeks to create a hostile environment or antagonize homosexuals. CLS notes that its rules do not exclude anyone based on their sexual orientation, but on belief and behavior that applies to homosexuals and heterosexuals alike. See id. at 38.
Hastings maintains that their open-membership policy applies to all student groups, without targeting religion or a particular belief, and is therefore viewpoint-neutral. See Brief for Respondent at 28. Hastings contends that, while a nondiscrimination condition may have a greater effect on a particular group, that does not mean the condition itself is viewpoint-discriminatory. See id. at 31. CLS argues that, while other groups based around political or cultural views can restrict their officers to those of a certain belief, Hastings’ policy prohibits religious groups from selecting leaders based on their beliefs. See Brief for Petitioner at 37. CLS argues that this policy infringes one’s right to religious association by denying CLS the ability to choose leaders that conform to the group’s core beliefs. See id. at 41. Hastings contends that a viewpoint-neutral restriction on speech is not discriminatory simply because it affects one’s right to associate—that is the case with almost any limitation on speech. See Brief for Respondent at 31.
Hastings also points to the fact that various Christian groups have existed before, and the policy does not exclude speech based on its viewpoint. See Brief for Respondent at 29. Hastings stresses that it has never barred the group’s presence and even allowed CLS to use school facilities. See id. at 41. Hastings argues that CLS has been given the same viewpoint-neutral choice as every other RSO and that CLS is, in fact, arguing for special treatment: existence as an RSO while maintaining discriminatory practices. See id. at 47. Under Hastings’ interpretation of its policy, student groups are free to abide by the open-membership rule and receive certain benefits or disregard the rule and lose the school’s recognition. See id. at 39.
CLS contends that the ability for the group to exist apart from the benefits the school provides to RSOs does not lessen the discriminatory impact of the restriction. See Brief for Petitioner at 24. CLS maintains that Hastings’ policy is unconstitutional even though noncompliance does not ban the group from meeting, but merely denies access to certain benefits. See id. at 54. CLS argues that student funding is collected from every student at the school for the purpose of creating a space for diverse viewpoints, and a denial of such benefits infringes on the ability to have a meeting space in a public forum. See id. at 57. Hastings maintains that it has concluded that allowing students equal access to its RSOs is the best way to enhance the student experience. See Brief for Respondent at 32. Hastings further argues that it is reasonable to conclude that its mandatory student activity fee only underscores the need for students to fund activities in which everyone can partake. See id. at 33. Hastings also contends that its policy follows state law in prohibiting the use of school resources to support discriminatory practices. See id. at 33–34. Hastings further argues that it is reasonable to deny resources to RSOs that support discriminatory practices to use the Hastings name, since it may give the impression that the school supports those practices. See id. at 35.
CLS maintains that if they followed Hastings’ nondiscriminatory policy, they would open their group to leaders that do not share their beliefs, thus sabotaging their message. See Brief for Petitioner at 27–28. CLS stresses that the right to association allows groups to restrict their association to those that support the group, rather than require them to admit students that oppose their message. See id. at 29. CLS further argues that freedom of association protects the voice of minority or unpopular groups from harassment. See id. at 30. CLS is concerned that this policy would allow a small group to be taken over by students hostile to that group’s views. For example, if a group of students opposed the beliefs of a 5-member CLS organization, an opposing 6-member group could simply show up at an election meeting and vote in its own candidates. However, Hastings contends that its policy strengthens minority viewpoints by encouraging debate within as well as among groups. See Brief for Respondent at 36–37. Hastings also notes that there has never been an incident of leadership sabotage. See id. at 43. CLS contends that if any viewpoint was allowed within a particular group, the group would become blurred, and result in its own forum of diverse ideas, rather than a group that could advance a particular view among other groups. See Brief for Petitioner at 53. CLS argues that this limitation allows freedom of association at the expense of one’s right to equal treatment within a speech forum. See id. at 55.
This case will determine whether a law school’s nondiscrimination policy unconstitutionally restricts certain groups from receiving school funding and infringes their First Amendment right to expression and association. The Christian Legal Society argues that the policy infringes its First Amendment rights, and the policy itself discriminates on the basis of viewpoint. Hastings argues that the policy is viewpoint-neutral and reasonable. This case will have a wide impact on the ability of student organizations to impose restrictions on their membership and leadership selection process, and may affect the ability of student groups beyond the chapters of the Christian Legal Society to receive school funding and recognition.
Edited by: James McConnell
• Annotated U.S. Constitution: First Amendment, Right of Association
• Michael C. Dorf, The Supreme Court Reviews a Conflict Between Equality and Freedom of Association, Findlaw’s Writ (Dec. 14, 2009).
• Dorf on Law: Another Perspective on Christian Legal Society v. Martinez (Dec. 14, 2009)