Religion & Law

I may be blind, but I do not see the law declared in the Christian Legal Society case as a serious blow to freedom of religion or freedom of speech. The Court affirmed an ?all-comers? policy in the case. In order to secure subsidies from the Hastings Law School, any organization had to be open to all students. If it was not open to all students, Hastings agreed to provide access to law school facilities for meetings and access to adequate means to publicize its meetings. 

The Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court). The Court did not rule that Hastings could prohibit selective membership; it ruled that Hastings need not subsidize organizations with selective membership. And the Court ruled that an all-comers policy should not be approved if it were a pretext to discriminate against the Christian Legal Society. The Court remanded to determine whether the policy was pretextual if the issue was still procedurally open to the plaintiffs.

Justice Alito disagreed with the Court on its understanding of the record and Alito decided many factual issues for the first time in the Supreme Court, issues that had not been reached by the lower courts including whether the Society really had access to facilities for meetings.

But the legal differences between Justice Ginsburg, author of the majority opinion, and Justice Alito were thin. They did disagree whether an ?all-comers? policy was reasonable. Justice Ginsburg argued it was reasonable because an all-comers policy ensured that students were afforded leadership, educational, and social opportunities, that Hastings students are not forced through their student fees to fund a group that would reject them as members, that it helped Hastings enforce its anti-discrimination policy (and state anti-discrimination laws) without the necessity of determining the basis for membership restrictions, and, by bringing together people of diverse backgrounds, that it encouraged toleration, cooperation, and learning. Any claim that hostile students would take over an organization was contrary to the experience of the school and unduly speculative. The reasonableness of the policy was also indicated by its measured character. The school offered access to school facilities to conduct meetings and the use of chalkboards and some bulletin boards, and it could take advantage of electronic media and social networking sites.

I personally would not support an all-comers policy (and I think Justice Alito has a good rejoinder on the reasonableness issue though I do not recall a response to the student fees argument). I also worry that an all-comers policy could conceal discriminatory interests (though the fact that it applies to all organizations undercuts that worry). But I do not think the policy is constitutionally unreasonable.

So long as groups with selective membership policies have access to school facilities to conduct meetings and the means to communicate about them, and that is the legal assumption of Justice Ginsburg?s opinion, I do not think this case is very significant. 

cross-posted at religiousleftlaw.com