Christian Legal Society v. Martinez

Today, the U.S. Supreme Court heard oral arguments in Christian Legal Society v. Martinez. The dispute concerns Hastings’ Law School’s “all comers” policy regarding student clubs. The policy requires any officially recognized student club or association to allow any Hastings law student to join.

The Christian Legal Society (“CLS”), was an officially recognized association at Hastings' law school - a status which made it eligible to receive school funding and other benefits. But when Hastings’ CLS affiliated itself with the National CLS in 2004, the Hastings branch changed its bylaws to require voting members and officers to sign a statement of faith that precludes "unrepentant participation in or advocacy of a sexually immoral lifestyle" and to pledge "to live their lives accordingly." In response, Hastings rescinded CLS’s official status on the grounds that CLS’s new requirement violated Hastings' non-discrimination “all comers” policy.

CLS sued in Federal Court, claiming that Hastings’ refusal to officially recognize CLS violated their constitutional right to freely associate. CLS lost at the District Court level, and lost again at the Ninth Circuit Court of Appeals - the appellate court issued a terse two sentence long decision affirming the District Court’s ruling.

This is a difficult case. An “all comers” policy appears to preclude Hastings law students from forming internally coherent associations. If the Federalist Society, a perfectly legitimate group dedicated to promoting a specific legal philosophy, is forced to admit, or to allow to serve as officers, individuals who adamantly oppose that legal philosophy, can there truly be a coherent “Federalist Society?” Perhaps, if its opponents leave it alone. But what if they don’t - what if so many liberals joined the Federalist society that they took it over and changed its purpose? Sure, the real federalies can quit and form Federalist Society (2). But anyone can see where this is going.

I doubt this group sabotage is actually happening anywhere. But, at least in theory, an “all comers” policy exposes coherent and legitimate groups to this sort of mischief. More importantly, an "all comers" policy is contrary to the basic idea of association. Freedom to associate is also the freedom not to associate, or to disassociate. Groups of like minded or like purposed people cannot define themselves in terms of their mind set or purpose, without the right to exclude those with contrary minds or purposes. There is really no getting around this. Our constitutional right to associate is also a right to disassociate.

Hasting’s reply is sure to be, CLS is free to associate or not associate with anyone it pleases. But if CLS excludes people based on their religion (or lack thereof) or their sexual orientation, the School is free, based on sound non-discrimination policy, to not extend official recognition to CLS - which would give them access to student fee generated funds. In other words, the School is free not to officially associate with a group that discriminates based on religion and/or sexual orientation.

For what its worth - and you must think it worth something if you're reading this - I worry that a ruling in favor of CLS would be a huge step backwards in our discrimination jurisprudence. I see no way for the Justices to rule in CLS’s favor without essentially holding that religious beliefs trump the need to abide by non-discrimination policies. If the Court goes there, or anywhere near there, we’re going to see a lot of discrimination justified by theology, a legal strategy that our courts have hitherto soundly rejected.

Joe H.