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Thro & Russo on Christian Legal Society v. Martinez

By Lawrence Solum

William E. Thro and Charles J. Russo (Christopher Newport University and Univeristy of Dayton) have posted A Serious Setback for Freedom: The Implications of Christian Legal Society V. Martinez (Education Law Reporter, 2011) on SSRN. Here is the abstract:

In Christian Legal Society v. Martinez, a sharply divided Supreme Court upheld an order of the Ninth Circuit that officials at a public law school in California may require an on campus religious group to admit all-comers from the student body, including those who disagree with its beliefs as a condition of becoming a recognized student organization. Put another way, the Court declared that the government, through university officials, may now force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right. The question remains slightly open because the Court remanded for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society.

Christian Legal Society is a victory for those who believe that no student should experience discrimination in any form. Yet, Christian Legal Society is a serious setback for freedom. As the Wall Street Journal noted, ?under the guise of nondiscrimination, the school would actively suppress the convictions of certain groups and their ability to express their views.? Moreover, as the Los Angeles Times observed, Christian Legal Society represented a departure from the Court?s ?theme? of protecting the First Amendment rights of ?unpopular? groups.

This Article explores the Supreme Court?s decision in Christian Legal Society and its implications. Part I reviews the facts in Christian Legal Society as well as the Opinion of the Court, the two concurrences, and the four Justice dissent. Part II of this Commentary addresses the fundamental change in the Court?s limited-public forum jurisprudence, its evaluation of equality over freedom, and the significant impact that Christian Legal Society has on student organization jurisprudence.

Full post as published by Legal Theory Blog on September 28, 2010 (boomark / email).