Religion & Law

On February 5 on MOJ, Tom Berg described the soon-to-be-decided Christian Legal Society case in this way: ?Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality.  It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. ? http://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/christian-legal-society-briefs-in-the-supreme-court.html

I think this description leaves out an important aspect of the case. The parties stipulated in the Court of Appeals that the Hastings policy was the following: the only organizations that could receive subsidies and other benefits were those organizations open to all students in terms of being officers or members.  This policy is viewpoint neutral ? it is not aimed at content of any kind. And more controversial, it is reasonable within the meaning of public forum doctrine even if it is not wise (and, just as an aside, I do not think it is wise).

If Hastings is to grant subsidies to organizations in a deliberately diverse student body, it can confine subsidies to those that are open to all students. This is not a prohibition of discrimination or a direct denial of freedom of association; it is a denial of a subsidy; The Boy Scouts case does not apply.

To me, the interesting question is to determine what the baseline is for deciding what a subsidy is in these cases. I think it clear that a group not meeting the all comers policy should have no right to receive funds. On the other hand, it should have access to classrooms as a matter of right. (Hastings, I think is granting this as a matter of sufferance).  Similarly, it should have an ability to communicate through an effective means the existence of its meetings and events. But should it have access to school bulletin boards? I think more attention to the line between prohibition and subsidy is needed.

cross-posted at religiousleftlaw.com