WASHINGTON (BP)–It will come as no great shock to religious liberty defender Mathew Staver if the U.S. Supreme Court returns a case about the free speech and association rights of Christian law students to a lower court.
After sitting in on oral arguments in Christian Legal Society v. Martinez, the chairman of Liberty Counsel expressed surprise about one thing — “the court’s concern over what the policy [in question] actually is.”
“That has to be fundamentally understood before you get to the constitutional issue,” Staver told Baptist Press after the arguments. “It’s possible that the court could decide to send this case back for further development of the factual record before reaching the constitutional question. On the other hand, there’s enough concern by these justices on the application of this policy that they might ultimately decide the constitutional question now.”
The justices heard arguments over whether a state university may deny recognition to a student religious organization that requires its leaders and members to affirm its beliefs. The University of California Hastings College of the Law refused to recognize the Christian Legal Society as a “registered student organization” (RSO) beginning with the 2004-05 school year. The law school, located in San Francisco, said the CLS constitution violated the institution’s nondiscrimination policy, specifically its religious and sexual orientation provisions.
After a federal judge ruled in the law school’s favor in response to a CLS suit, the Ninth Circuit Court of Appeals affirmed his decision. A panel of the appeals court ruled in 2009 that the school’s denial of recognition to CLS was “viewpoint neutral and reasonable.”
If the justices send the case back down, that decision probably will be known soon. If not, an opinion should be announced by early July.
CLS chapters welcome all students to their meetings but permit only those who agree to the organization’s statement of faith to be officers or voting members. The CLS statement calls for abstinence from “unrepentant participation in or advocacy of a sexually immoral lifestyle.”
RSO status at Hastings College of the Law enables a group to use campus facilities for meetings and provides access to means of communication at the school.
Staver was not the only observer who wondered afterward if the high court would even render a decision at this time in the case. The justices, led by Associate Justice Anthony Kennedy, questioned the facts in the case. The confusion seemed to stem from two policies cited by the law school and that were the basis for its decision on CLS’ request for recognition. The school has a non-discrimination policy as well as an “all-comers policy” that requires an organization to welcome all students as members, including those who disagree with the organization.
“If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study, and if CLS does not promise to allow this, the college will bar them from its forum for speech,” Michael McConnell told the justices on behalf of CLS.
McConnell, a law professor at Stanford University, is considered an expert on the religion clauses of the First Amendment. He served for nearly seven years as a judge nominated by President George W. Bush to the 10th Circuit Court of Appeals before going to Stanford in 2009.
The school’s position is “blatantly unconstitutional” and “manifestly overbroad,” McConnell said. “It is also a frontal assault on freedom of association.”
Free exercise of religion is involved in the case, but “what the free-exercise clause protects is exactly what the associational freedom test would protect for everyone,” McConnell told the court.
Gregory Garre, who represented Hastings College of the Law, told the justices the school “isn’t in the business of second-guessing” the beliefs of organizations. “[T]he whole point of the policy really is to stay out of this, to just have a blanket that is equally neutral,” said Garre, who was the final U.S. solicitor general under Bush.
Associate Justice Antonin Scalia told Garre it “is so weird” to force “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.”
There are other law schools that have such policies, including those at Columbia and Georgetown universities, Garre said.
Staver said after the April 19 arguments the question in the case is “fundamental to the First Amendment.”
“[I]f this policy really means what it says, it means that Democrats must admit Republicans to leadership, Republicans Democrats, Jews Muslims, Muslims Christians, and Christians atheists…. If that’s what this policy does, which it appears to do, then that ultimately destroys freedom of speech, freedom of association, and it ultimately destroys individual groups and people from associating around shared core values, that in and of themselves are discriminatory,” he said.
The case appears to share similarities with a series of decisions during the last three decades in which the Supreme Court has ruled that government must give equal access to religious groups when it provides a forum for non-religious organizations.
“It’s no different in reality from an equal access [standpoint] than Widmar, Rosenberger, Lamb’s Chapel and the Good News Club case,” Staver said. “This, however, does the same thing that some of those governments were trying to do — exclude religious viewpoints — but it does it in a more subtle way. Instead of saying Christians can’t meet on campus because of your Christian viewpoint, it selects a particular belief that is contrary to Christians with regards to sexuality and says, ‘We’re going to require that belief to be shared by everybody, and that’s whether you’re atheist, Christian or non-Christian.'”
Tom Strode is the Washington bureau chief for Baptist Press.