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Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: : Supreme Court of the United States

By Andis Kaulins

The oral argument transcript in the 1st Amendment case of the Christian CLS student group against Hastings Law School is up at:

Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: before the Supreme Court of the United States, April 19, 2010

 [LawPundit comment: The Oral Argument by Mr. McConnell for the Petitioner CLS starts out with the Court perturbed by the unclarity of the case due to joint stipulations of fact by the parties that do not accurately portray the actual facts, especially as to the policies of Hastings Law School]

JUSTICE KENNEDY: ... it's a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Club.... Frankly it's a much easier case for you. But it's -- it's frustrating for us not to know what kind of case we have in front of us.
...

JUSTICE ALITO: Mr. McConnell, when I read -- when I read the papers that Hastings submitted to the district court at the same time that the joint stipulation was submitted, I saw one reference after another to an allegation that Hastings was applying its policy in a discriminatory manner, that it was not in fact insisting that all registered student organizations admit all applicants. And when I read their brief in the Ninth Circuit I saw that point reiterated again and again.
So that led me to believe that what was stipulated was not that in fact they had a policy which they enforced under which anybody who applied to any group would be admitted, but that this was what Dean Cane had announced. That was the stated policy, but not necessarily the actual policy that was employed. And that was the argument it seemed to me that CLS was making; isn't that correct?

MR. McCONNELL: That's entirely correct, Justice -- Justice Alito.
...
[LawPundit comment: McConnell goes on the offensive to point out that the policy of Hastings Law School is overly broad and conflicts with its diversity purpose.]

MR. McCONNELL: ... the policy is I think blatantly unconstitutional. It is manifestly overbroad with respect to any purposes stated. And of course, in Healy v. James this Court held that any restriction on a student speech forum may be no more extensive than is required by its purposes. It is also a frontal assault on freedom of association. Freedom of association is the right to form around shared beliefs....
...

MR. McCONNELL: ... restrictions on a designated public forum must be reasonable in light of the purposes of the forum. The purpose of the forum is set forth in joint stipulation number 8. It is to promote a diversity of viewpoints among registered student organizations. If the student organizations are not allowed to have a coherent set of beliefs, there can be no diversity among them.
...

[LawPundit comment: Justice Sotomayor refers the position of educational institutions in this case generally that policies like those of the Hastings Law School on anti-discrimination are entitled to deference and should not be "constitutionalized"]

JUSTICE SOTOMAYOR: But this sounds like a debate over whether the policy as the school believes it should be implemented is not a good one. But isn't that their choice? Don't we give deference to an educational institution in terms of the choices it makes about affecting its purposes? And the purpose here is we don't want our students to discriminate.

MR. McCONNELL: There is a stipulation as to what the purpose is, and the purpose is to promote a diversity of viewpoints among registered student organizations.
...

MR. McCONNELL: "Hastings seeks to promote a diversity of viewpoints among registered student organizations."
And note how destructive an all-comers policy directed on belief is toward -- toward that. That means that if, for example, there is an NAACP chapter, it would have to allow a -- a racist skinhead to sit on -- in on its planning meetings. That means that if there is an environmentalist club that has a demonstration in Sacramento in favor of cap-and-trade legislation, they would have to allow ...
McCONNELL: -- a global warming skeptic to -

JUSTICE GINSBURG: It may be an ill-advised policy, but the school says: It's our policy, it's working fine, and all the -- the hypotheticals about sabotage, takeover, they haven't happened.

[LawPundit comment: The problem of "various" Hastings policies raises its head]

MR. McCONNELL: They haven't happened because this policy came into being -- was announced for the first time in 2005, so there couldn't possibly be any -- any record of that.
JUSTICE SCALIA: This -- this was not the policy on the basis of which CLS was excluded; is that correct?
MR. McCONNELL: That's correct, it was not.
JUSTICE SCALIA: It -- when they were refused participation in the -- in the student organization program, they were not told about the all-comers policy.
MR. McCONNELL: That's correct. Joint Stipulation No. 40 states clearly that the -- that the -- that they were informed, and I quote: "They were informed that CLS bylaws were not compliant with the religion and sexual orientation provisions of the Nondiscrimination Policy."
JUSTICE ALITO: And was there any written document memorializing this policy prior to the time when the former dean gave her deposition?
MR. McCONNELL: Never.
JUSTICE ALITO: And is the -- is the policy as articulated by the dean in her deposition the same as the policy that Hastings now claims it has in its brief?
MR. McCONNELL: I don't think so. Every time the policy is mentioned, it seems to morph into something else. When the dean announced in the depositions, she said all students may participate on the -- in all activities, period, full stop. Now we find out in their brief, well, their -- groups can have conduct limitations, they can require dues, they can have attendance requirements, they can have competitive contests to see whether they get in.
This -- this policy is -- it changes with every wind.
And -- but the fundamental problem with this -- with this is what -- what this Court stated in Velazquez v. Legal Services Corporation, that you cannot allow -- you cannot allow the terms of the policy just to say that whatever their policy is, that that determines the contours of the program, because that would render the First Amendment a -- a nullity.

[LawPundit: the Oral Argument now turns to the issue of the 1st Amendment]
...
JUSTICE GINSBURG: Mr. McConnell, let's say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that's based on their fundamental belief that that's what the Bible instructs. On your view, must Hastings give this organization status as a recognized student organization?
MR. McCONNELL: No, Justice Ginsburg. Our position is it is unconstitutional to -- to prohibit groups to form around beliefs but not around status.
JUSTICE GINSBURG: But the belief is -- this is the belief.
MR. McCONNELL: They can insist that -- that everyone who participates in the group have that belief, and that, as Justice Scalia said, may mean it's going to be a very small group. But they cannot discriminate on the basis of status. But belief -- as this Court said in Cantwell v. Connecticut, belief, the freedom to believe, is absolute -
...
JUSTICE SCALIA: The written policy -- when it forbids discrimination on the basis of sexual orientation was complied with by CLS because it would not discriminate on the basis of orientation, only on the basis of belief.
MR. McCONNELL: That's correct.
JUSTICE BREYER: If -- if a homosexual person said, I want to belong to this club, and I believe in its principles, I don't believe in sexual relationships before marriage, and that's why I want to work for homosexual marriage, which I do, so my consistency there, is that person -- I am consistent in what I work for, what I believe, and on -- as far as premarital sex is concerned, it's totally 100 percent with your organization that you are representing; would they admit that person or not?
MR. McCONNELL: Yes. There is a joint stipulation to that effect, No. 34.
...

[LawPundit comment: the Oral Argument now turns to the issue of the denial -- or not -- of benefits to CLS by Hastings and the 1st Amendment consequences]

JUSTICE SOTOMAYOR: You keep talking about being forced to let people in. And this is where I'm a little bit confused by your yellow brief.
The school has taken the position that any group can apply to use its facilities; priority and funding, et cetera, will only go to recognized student groups. But your group is not being excluded or ostracized completely from the school....

MR. McCONNELL: ... Justice Sotomayor, I believe what we consistently say is that we have been denied the right to meet on campus and that is completely true.
...
Justice Sotomayor, even the access to campus communications is absolutely essential, as this Court said in the -- in Healy v. James. We are barred from access to the -- to Hastings' e-mail system; we can't post notices on the usual bulletin board; we are left out of the weekly -
JUSTICE SOTOMAYOR: There are bulletin boards. There are other ones.
MR. McCONNELL: There -- there is -- there are ones for the -- for campus and student groups, and then there is another one for community groups. We are allowed to post on the community group, but we are not allowed to post on the boards that -- that students look to for where student activities occur.
We are left out of the -- a very important point -- the student organization fair at the beginning of the year where groups introduce themselves to the 1L's as they -- as they come in.
...

MR. McCONNELL: I only cite Cantwell for the proposition that belief is absolute.
JUSTICE KENNEDY: No. No. And Cantwell said that belief is central to -- to religions and that people would disagree. But that's precisely why Hastings might argue to us that -- that this is inconsistent with their idea of what this forum is. And if -- will you just address that, please?
MR. McCONNELL: I would address it. The forum -- the purposes of the forum are undisputed. They are to provide a diversity of expression among student groups. Their policy disserves the purpose of the forum and therefore cannot be regarded as reasonable in light of that. And what is more, what they have done is - it's also not reasonable because it's independently unconstitutional. What they have done is they've said you may not have fundamental freedom of association or if you do we will withdraw an otherwise available benefit from you.
As recently as the unanimous decision of this Court in FAIR v. Rumsfeld, the Court reiterated the -- the now I think 100-year old principle that constitutional rights may not be penalized by the withdrawal of benefits any more than they can by -- by direct prohibition.

[LawPundit comment: We now turn to Oral Argument by Mr. Garre for the Respondent Hastings Law School -- Garre starts out on the defensive from the very beginning as the problem of the various policies of Hastings Law School again raises its head]

MR. GARRE: Thank you, Mr. Chief Justice, and may it please the Court:
This case was decided by both courts below on the premise, which is not dispute in any point in the petition for certiorari, that Hastings reserves the funding and benefits that go to student groups that obtain school recognition to groups that choose to admit all students regardless of the status or their beliefs.
CHIEF JUSTICE ROBERTS: Well, then why do you have -- why do you have a policy, a written policy -- you don't have a written policy that says anything about all-comers. You have got a written policy that says you can -- you can't discriminate on the basis of only one type of belief, religious belief.

[LawPundit: the Court now turns to the fact that the various policies are not applied uniformly by Hastings Law School]
...

JUSTICE ALITO: ...hasn't it been CLS's position from the very beginning of this case that Hastings has not in fact required every group to admit any student who applies? Don't they say that over and over again in their district court papers, in the court of appeals briefs, and in the cert petition?
MR. GARRE: If -- if they believe that that caused the school to adopt a different policy, they shouldn't have stipulated to the policy that they did. And they should have challenged at a minimum -
JUSTICE SCALIA: Well, they stipulated that the policy exists. They didn't stipulate that it is - is being faithfully applied by Hastings. What do you do about the -- the -- the two organizations' bylaws set -referred to in the -- in the Petitioner's brief, which clearly do -- conflict with the so-called all-comers policy?
....

CHIEF JUSTICE ROBERTS: ... they ... quote the bylaws of the National Lawyers Guild, which says: "Any member must agree with the objectives of the organization as set forth herein." That's not all-comers. That's a bylaw that restricts an organization according to its -- members can't join unless they sign on the dotted line that they believe in objectives of the organization.
MR. GARRE: There is a fundamental difference between a group that says people of a particular sexual orientation are not allowed to become members -
CHIEF JUSTICE ROBERTS: It has nothing to do with -
JUSTICE SCALIA: They don't say that.
CHIEF JUSTICE ROBERTS: It's got nothing to do with sexual -- well, I don't know the National Lawyers Guild, but they say you have got to agree with the objectives of the organization.
MR. GARRE: Justice Scalia, the district court made a -- may I?
CHIEF JUSTICE ROBERTS: No, start with mine.
MR. GARRE: Okay.
(Laughter.)
MR. GARRE: Mr. Chief Justice, as -- as Dean -- as director of student services testified, the fact that the bylaws may say we want students who are interested in our activities doesn't mean that the bylaws are excluding students who want to join. And there is a fundamental difference, again, between saying students that have these particular beliefs or status cannot become members in the group -
CHIEF JUSTICE ROBERTS: It seems to me that your position is continually evolving wherever the First Amendment pressure comes. You have got a written nondiscrimination policy. And then you say: Well, yes, but we use an all-comers policy. You have got an all-comers policy and then groups don't actually follow the all-comers policy, and you have another answer to that. It seems to me that we should go with -- why shouldn't we go with the written policy and the written bylaws?
...
[LawPundit comment: the critical problem of "selective application" of the policies is identifed]

JUSTICE SOTOMAYOR: What do we do with the selective application argument, which is what Justice Alito referred to and Justice Scalia, which is: It is troubling that some of these bylaws do limit their groups. La Raza limited it to people of Hispanic descent, and the Lawyers' Guild to people who adopt its -- its beliefs. What are we going to do with this selective application argument? It's in the case, isn't it? And if it is, what does it do to your policy?

MR. GARRE: Justice Sotomayor, this case wasn't litigated as a pretext case. If you look at the briefs in this case, the first time that the word "pretext" is used is in the reply brief in this Court.
It was litigated as a challenge, which is a serious challenge, to the constitutionality of an all-comers policy in this particular -
JUSTICE SCALIA: The two are connected, though, Mr. Garre. Frankly, one reason why I am inclined to think this is pretextual is that it is so weird to require the -- the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy.
...

[LawPundit comment: and then, the critical 1st Amendment question is posed, namely, what is the State's compelling interest for having these - various - policies that the Hastings Law School is enforcing against CLS?]

JUSTICE KENNEDY: ... why doesn't this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don't agree with them want to belong to them. What -- doesn't this all just work out?
MR. GARRE: Justice Scalia -
JUSTICE KENNEDY: Doesn't it work out that the Democrats, they don't want to go to the Republican club and run for officership anyway. So why -- what -what interest does this -- does the school have in this policing mechanism that it's imposing?
[LawPundit comment: that question by Justice Kennedy, the swing Justice on the Court, is the critical inquiry for the Respondents]
...
MR. GARRE: A number of things, Justice Kennedy. The first is the line-drawing issue that has been made clear during the first part of the argument this morning. If you're going -- they appear to take off the table race, and what they say, other status considerations. I'm not sure why that excludes sexual orientation.
But if you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line. And I think a school can reasonably say: We don't want to get into this business at all; we want to allow all comers for all school-subsidized -JUSTICE ALITO: But you now say -- you now say in your brief that it is okay for a group to impose membership requirements that are neutral and not based on beliefs. Isn't that right?
MR. GARRE: That doesn't go to status or belief. If you are talking about attendance requirements or competition, those are merits-based requirements.
CHIEF JUSTICE ROBERTS: No, you are talking about La Raza background. As I understand it, the La Raza organization says you have to be of La Raza background to be a policy member of the organization.
...

JUSTICE BREYER: What we have is a rule, a stipulation. And as I read it, to try to make sense out of it, it does seem to discriminate against organizations in respect to which intellectual purity would be important. You are going to have a harder time. The ones that don't care that much will have an easier time.
Now, in trying to judge the constitutionality of that, I first have no idea which these organizations are....

MR. GARRE: If the Court believes that, respectfully, we think it should dismiss the writ as improvidently granted. This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.
Now, I think it is common ground -
JUSTICE GINSBURG: You do -- Mr. Garre, you did say that the evidence is the Dean's deposition. There is no prior evidence. But there are schools, including law schools, that have this policy. Is that not so?
MR. GARRE: That's true. Georgetown Law School does. Columbia Law School. Look, there is an amicus brief filed by 13 educational organizations representing thousands of colleges and universities across the country, including the association of Jesuit colleges and universities, saying that this is a not-uncommon and a reasonable policy. We are not saying it's the only approach that colleges can take in balancing the competing interests here. We are saying that the Constitution -
JUSTICE ALITO: Well, let's explore the constitutional implications of this policy. Suppose at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?
...
MR. GARRE: And there's -- as to the takeover hypothetical, there is no evidence that it has happened. Groups can take measures to prevent it. They can require attendance requirements before people become members. They can instruct -
CHIEF JUSTICE ROBERTS: That's not going to help if you have the 50 anti-Muslim students who want to take over the group.
...
JUSTICE ALITO: If an orthodox -- if an orthodox Jewish group or a Muslim group applied for recognition and the group said part of our beliefs is -one of our beliefs is that men and women should sit separately at religious services, would Hastings deny registration to that group? ...
MR. GARRE: If it was excluding students from that group on the basis of their beliefs or their status, then, yes, it would.
Hastings isn't in the business of second-guessing the -- the beliefs of -- of individual groups, and the whole point of the policy really is to stay out of this, to just have a blanket that is equally neutral.
JUSTICE ALITO: We have two amicus briefs from two orthodox Jewish groups and a brief from a Muslim group. So, your answer is that they could not be recognized under a Hastings' policy because of their religious beliefs regarding the way religious services should be conducted?
...

CHIEF JUSTICE ROBERTS: ...gender or race is fundamentally different from religious brief. Gender and race is a status. Religious belief, it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we have always regarded that as a good thing. That type of exclusion is supported in - in the Constitution. The other types of exclusion are not.
...

JUSTICE STEVENS: May I ask one question? I'd like you to answer, and your opponent, too, do you think that in order to decide this case, we have to pass on the constitutionality of an all-comers policy?
MR. GARRE: Yes, that's the policy before this Court.
...

REBUTTAL ARGUMENT BY MICHAEL W. McCONNELL ON BEHALF OF THE PETITIONER ...
JUSTICE BREYER: -- my question is, if I can think of this policy -- but I tend to sympathize with your view that it's so hard to believe that they really hold it, maybe they do, I don't know about it -- what do I do with this case?
How can I say whether this, let's call it "hug your neighbor policy" is -- to put a label on it that's catchy -- how do I -- how do I evaluate that?

MR. McCONNELL: What you can say is that Healy v. James requires a substantial justification for exclusion of a student group from a registered student activity forum, and this is not a substantial justification; it is a silly justification. If it is silly, crazy and preposterous it is not even reasonable, let alone compelling or substantial.

Full post as published by LawPundit on April 20, 2010 (boomark / email).