Academic

Supreme Court to Decide Student Religious Association Case

By Calvin Massey

   The Supreme Court has granted the petition for certiorari in Christian Legal Society v. Martinez (08-1371).  The case presents an interesting confluence of issues:  expressive association rights, public forum doctrine, and the scope of anti-discrimination regulations when they conflict with associational freedom.  The case arises from the University of California, Hastings Law School.  The school has a policy that forbids recognition to student groups that do not adhere to its non-discrimination policy, which forbids discrimination on the basis of religion or sexual orientation, among other criteria. Only student groups that have been recognized are permitted to use school facilities.  The Hastings Christian Legal Society permits any student to join, but limits voting rights and office-holding to those students who affirm that they are Christian and not homosexual. 
     The Christian Legal Society contends that Hastings has created a limited public forum but has used viewpoint based criteria to exclude the CLS from the forum.  Hastings contends that its criteria are viewpoint-neutral and are, in any case, necessary to achieve the compelling interest of a community open to all students without discrimination on the basis of religion or sexual orientation.  CLS further argues that the Hastings rules are a severe infringement upon its expressive associational rights.
    I think the crux of the case is whether the Hastings regulations that limit access to the designated public forum are viewpoint-based.  As applied to CLS, they strike at the heart of the viewpoint that CLS espouses.  On the other hand, the regulations on their face are indifferent to the viewpoint of any student organization, so long as the organization opens its doors to every student.  Eugene Volokh has published a relevant article in the Stanford Law Review that analyzes these types of questions in a fashion that endorses the Hastings argument.  Yet, both Rosenberger and Dale provide some support for CLS. 
    I do not think the expressive association claim is particularly strong. If Hastings has not acted in a viewpoint-based manner to exclude CLS from the forum, Hastings has no obligation to subsidize discriminatory student groups.
   The cert petition, brief in opposition, and reply brief can be found at scotusblog.com.

Full post as published by The Faculty Lounge on December 07, 2009 (boomark / email).