At 10 a.m. Monday, the Supreme Court will hear one hour of oral argument in Christian Legal Society v. Martinez, et al. (08-1371).  Arguing for the student group will be Stanford constitutional law professor and former federal Circuit Court judge Michael W. McConnell, and for officials of Hastings College of Law in San Francisco will be a former U.S. Solicitor General, Gregory G. Garre, now chair of the appellate practice at Latham & Watkins, in Washington.

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The Supreme Court, returning to the long-running controversy over religion in public life, will be drawn to two lines of its own precedents: one that permits public education institutions some control on access to their facilities and benefits, the other protecting religious groups’ right to limit their membership to those who share their faith.  The clash of those prior rulings comes in a case involving a California public law school’s non-discrimination policy for officially-recognized campus student groups, and a Christian group’s claim that the policy discriminates against its members’ right to hold their beliefs.

Background

Americans can always get into a heated debate about religion, and no more so than when the debate is about what the Constitution says — or should say — about religious freedom.  From the Founding Fathers forward, faith issues have never been very far from the constitutional arena and, today, seldom does the Supreme Court’s docket lack a strongly contested religion case — often involving the rights of students intent on carrying their religion to school with them.  If their school is a public one, their right to do so becomes a constitutional question.

Two contemporary social developments are contributing to the intensity of this constitutional conflict in the school setting.  Spurred by a rising sensitivity to inequality, public schools from the elementary to the college level have moved increasingly to adopt non-discrimination policies.  But spurred by a deepening commitment in society to conservative religious values, legal advocacy groups are pressing more aggressively to gain protection for the expression of those values, in school as elsewhere in public life.   Those are the competing interests that ran into each other in 2004, when a student member of a Christian group asked about getting some travel money for the group at Hastings College of Law — a public institution in San Francisco, part of the California state university system.

The  Hastings student was vice president of a school chapter of the Christian Legal Society, which had been recognized at the law school for most of the preceding decade.  However, it had just become affiliated with a national organization of the Society, and that carried with it a new set of by-laws for the chapter.  The by-laws required that any student seeking membership had to sign a “statement of faith,” which includes various core tenets of the Christian faith.  Although membership and holding office is restricted to adherents pledgedto those tenets, the Society does allow anyone to take part in its meetings.

With official recognition, a campus group gets, among other benefits, the right to use the Hastings’ name and logo, access to bulletin boards, access to an e-mail address with links to a Law School network, access to college-provided travel funds, access to a weekly newsletter, use of office space, and use of a student information center to distribute information.  A group that does not have full recognition has access to the bulletin boards and to other means of contacting students, and can apply to use meeting rooms.

When the student went to school officials to seek $250 in travel funds so a chapter officer could attend a national conference of the Society, officials balked, finding that the chapter’s new by-laws violated Hastings’ non-discrimination policy. That policy, designed to provide equal access for all students to college affiliated and supported activities, forbids recognized groups to discriminate on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation.  After the chapter refused to alter its by-laws to conform to the school policy, recognition was denied, and the requested travel funds were withheld, leading the chapter to sue in federal District Court.

The District judge ruled that the non-discrimination policy only regulated conduct, and thus did not intrude on the chapter members’ free speech rights. The policy, the judge found, only regulated what registered student organizations do, not what they say or believe.   But, the judge added, even if the policy did regulate speech, the school was entitled to control the use of its public forum — that is, the school’s facilities, which the judge said was a “limited public forum,” not open to just anyone who wanted access.  The refusal to recognize the chapter, the District Court ruled, was neutral toward the chapter’s views and religious beliefs.   And the Court rejected a claim that the enforcement of the no-bias policy would intrude on the chapter members’ right to associate with people of like views.  No part of the policy or its enforcement, the decision said, would impair the chapter’s ability to convey its beliefs.   Finally, the judge said that the school’s non-discrimination policy reflected a compelling interest in furthering equal education goals.

When the Society chapter took the case to the Ninth Circuit Court, that appeals court already had before it a quite similar case, although the other case involved attempts by students at a public high school, rather than at a college or university, to form a religious club.   Students at Kentridge High School in Kent, Wash., had started a Christian club, which they named, simply, “Truth.”  The club would allow no one even to attend its meetings if they did not meet religious requirements.  The students sought recognition of Truth as a charter club at the school.  School officials, enforcing an equality policy, refused recognition, and the students and their organization sued, and lost in federal court.  The Ninth Circuit issued a full-scale ruling on the religious freedom claim in the Truth case.

On the basis of its ruling in the Truth case, the Ninth Circuit issued a two-sentence ruling in the Hastings law school case, rejecting outright the chapter’s constitutional claims.

The students in the Truth case asked the Supreme Court in March 2009 to hear their case (docket 08-1130), and they were followed to the Court about two months later by the petition of the Christian chapter at Hastings (08-1371).   In late June, as the Term closed, the Supreme Court denied review in the Truth case — as usual, without explanation.  The Hastings case was not fully ready for the Court until a new Term, the current Term, opened last October.

Petition for Certiorari

The Hastings chapter urged the Supreme Court to decide a single issue: whether it is unconstitutional for a state law school “to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.”  In a point that the law school would soon dispute, the petition contended that the law school “has recognized many groups whose constitutions provide that their officers and voting members should agree with their organizations’ missions and viewpoints.”  It offered a list, including the “Motorcycle Riders Club,” which expects its members either to own or ride a motorcycle or scooter, “or have an interest in such activities.”  The clear implication, of course, was that the Christian Legal Society was singled out for denial of recognition, solely because its viewpoint was religioius.

The petition’s main legal argument for Court review was that the Ninth Circuit decision “squarely conflicts” with a decision of the Seventh Circuit Court, in a case involving another chapter of the Christian Legal Society.  And it claimed a conflict with a Second Circuit Court decision involving the right of a high school student religious group to require its officers to affirm the group’s religious views.

Moreover, the petition said, the Ninth Circuit had deviated from two lines of precedents in the Supreme Court — first, the line of cases that included one protecting the right of the Boy Scouts to exclude homosexuals from leadership positions or membership (Boy Scouts v. Dale, 2000), and, second, the line of cases that included protection for recognition of religious groups at public universities, including the 1995 decision in Rosenberger v. Rector, University of  Virginia.

The impact of the ruling below, the chapter argued, would be widespread, affecting some 3 million students “at hundreds of higher educational institutions” in the Ninth Circuit alone.   It urged the Court to grant review not only in this case, but in the Truth case as well, “in order to fully resolve this burgeoning national problem and provide guidance…”

The law school responded, urging the Court not to review the case, noting that the Ninth Circuit had disposed of the case without examining it in any detail.  It also contended that the petition was wrong in claiming that the Christian chapter had been singled out for unfavorable treatment.  In the record developed in lower courts, the opposition brief said, it was clear that “every other registered student organization” had expressly adopted the school’s non-discrimination policy, opening its membership to any or all students at the law school..  Any references in those groups’ documentary materials to viewpoints were “informational only,” the school insisted, and the District Court had found that no group’s by-laws was used as a basis for denying membership “to any interested student.”

Tellingly, the opposition brief noted that the chapter now seeking recognition, without conforming to the school’s non- discrimination policy, had existed at Hastings for a decade before, and did not then restrict membership or holding office on the basis of religious viewpoint.  It was only after it affiliated with the national Society,  and had to adopt new by-laws, that the Society had put into effect the restrictive policy.

The opposition brief also contended that, on closer examination, there was no actual conflict among Circuit Courts on the issues at stake, since there were differences in the cases that explained their outcomes.

Joining the Society chapter in urging Supreme Court review were the National Association of Evangelicals, the Campus Crusade for Christ, the InterVarsity Christian Fellowship, and a fraternal group, Beta Upsilon Chi, which said it is the largest Christian fraternity in the nation.  Those groups argued that the case poses a major test of whether students groups at public colleges and universities could be required to surrender their “religious identity” as a condition for equal access to university facilities.  Moreover, that brief argued that this particular case was an excellent vehicle to face the issue, since the case was “uncluttered by factual concerns involving allegations of improper conduct by any person or group.”  And, the brief added, the institution involved was at the university level, so there was no problem of ‘immaturity” of the students (and thus no reason to think they would view official recognition as state endorsement of their particular faiths).

The Supreme Court did not take the chapter’s suggestion to grant review of the Truth case along with the chapter’s case.  In fact, the Court allowed briefing in the chapter case to run on into the summer months, after the Truth case had been denied.  Once the briefing was completed, however, the Court did not rush to grant the chapter’s case.  It examined the case at six separate Conferences, and then decided to call for and review the full record of the lower court proceedings.  Only after having done that did it grant review, on Dec. 7 of last year.  It may have been that the brevity of the Ninth Circuit’s ruling raised questions among some Justices about whether the issues raised were fully or actually presented.

Merits Briefs

Both sides in the case, as well as another student group taking part, recruited more high-profile advocates to prepare their merits briefs and to argue the case.  One of the country’s leading experts on church-state law — former federal Circuit Court judge Michael W. McConnell, now heading a constitutional law center at Stanford — represented the chapter.  Former U.S. Solicitor General Gregory G. Garre, now in private practice, represented the law school, and Paul M. Smith, a seasoned Supreme Court advocate at Jenner & Block, represented Hastings Outlaw, a student group that says it is interested in having access to all student organizations’ activities.

The chapter’s merits brief framed the issue as a “straightforward” one: its right, in common with all other “noncommercial expressive” groups, to “control the content of their speech by excluding those who do not share their essential purposes and beliefs” from becoming voting members or officers of the group.  The students who hold those positions, the group insisted, are vital to the chapter’s religious mission, because they teach weekly Bible studies, the chapter’s “most frequent and essential” activity.

In going back over the record in the case, the chapter brief put special emphasis on two arguments: first, defending the chapter’s own policy of tolerance, by opening its meetings and Bible studies to all students and having never excluded a student that did not share its views — such as homosexuals; and, second, describing the actual practices of other recognized student organizations that put restrictions on who can belong or have preferred status within that group.  Those groups, in contrast to the Society’s chapter, the brief suggested, “are permitted to maintain their identity, cohesion, and message” by restricting leadership and membership.

The brief also made a central point of the degree to which the Ninth Circuit supposedly had deviated from other courts.  “In every case outside of the Ninth Circuit where public universities have denied recognition to religious groups based on the rationales asserted here,” it said,”either the courts have ruled for the religious student group or the university has settled or mooted the case by revoking its unconstitutional policy.”   The brief also criticized the Ninth Circuit for having relied, in this case, upon its ruling in the Truth case; it argued that the Truth decision was limited solely to a group’s ban on any form of membership for students not sharing the group’s religious views.

The brief’s constitutional arguments are keyed to claims that the Hastings non-discrimination policy imposes “a severe burden” on three clear-cut rights of the Society’s members: their freedom of speech “within a public forum,” their freedom to associate with others of like views, and their right to freely exercise their religion.  “Hastings’ policy,” it argued, “is a threat to every group that seeks to form and define its own voice.”

Attacking the law school’s defense of the policy, the chapter brief said it sometimes has been justified as a requirement that student groups be completely open to “all comers” — an approach that the brief asserted sweeps far too broadly to serve any legitimate educational goal — and sometimes has been justified as allowing limits on membership and leadership so long as the limits apply within officially defined categories.  That latter defense, the brief said, is crafted directly to discriminate on the basis of viewpoint, because “a political or cultural group can insist that its leaders support its purposes and beliefs; a religious group cannot.”

Deep in the chapter’s brief, it raised an issue that has added a significant new layer of controversy: whether a public educational institution has any interest, compelling or otherwise, in requiring a religious group to give leadership positions to those who do not share its code of morality — specifically, in this case, the chapter’s view that sexual activity should only occur within marriage, and thus both extra-marital sex and homosexual sex are contradictory to its values.   This is a part of the chapter members’ belief system, the brief contended, that the law school’s “coercion” is targeting.  This opened up the possibility that the Court may have to address the heavy controversy over the degree of constitutional protection for public policies against discrimination based on sexual orientation.  Indeed, the brief seemed to be inviting the Court to consider that facet of the controversy, saying that the case potentially may lead to “a collision between religious freedom and rights of sexual orientation.”  A victory for the law school, it suggested, could mean that, if bias against sexual orientation is enforced, “religious and other groups that adhere to traditional moral views could be driven from the public square in the name of enforcing non-discrimination. This wold raise the stakes in the political battles over sexual orientation discrimination to a dangerous extent.”

The main strategy of the law school’s brief is to discredit the entire content of the chapter’s brief, by contending that it argues a case that is not the one the Court agreed to decide.  In its opening sentence, the school’s brief says that the chapter “and its amici apparently have little interest in litigating the case that came to this Court.”  A bit later, it suggested that the chapter had sought only to attack “straw men of its own making,” and argued that, if the case does not now present the issues that the Court had agreed to hear, the case should be dismissed as “improvidently granted.”

The case, the school asserted, does not involve any forced intrusion into the chapter’s internal affairs, it does not involve any singling out of a group for discrimination based on viewpoint since the policy only requires an “all comers” openness, it does not involve a group that has suffered under the policy since the chapter has, in fact, thrived without official recognition, and, finally, it is not about equal access at all because what the chapter is seeking is “a favored status” — its own, peculiar exemption to the no-bias policy.

On the merits of what it sees at stake, the law school’s merits brief contended that the focus should be on the nature of the school policy, and how it operates in reality.  That focus, it asserted, showed that the policy is a constitutionally valid form of limiting who can take part in a school-subsidized program.  It criticized the choice of cases on which the chapter’s merits brief mainly relied, arguing that those precedents involved “situations in which religious groups were subject to flagrant viewpoint discrimination.”

What the chapter’s arguments ultimately seek, the school brief said, is a constitutional right to a public subsidy or benefit without having to conform their practices to non-discriminatory policies.  Under the rule advocated by the chapter, the brief said, “expressive associations not only may insist that the public subsidize their practices, they may isist on using the state’s name while doing so.  Nothing in the First Amendment compels hast remarkable result.”

The student group Hastings Outlaw’s merits brief also argued that the only proper focus in the case is on the school’s open-membership policy, and the brief made much of the fact that the chapter had joined in a stipulation in lower courts about what that policy involved in the real world.  The chapter had a chance to create a factual dispute in the lower courts about how the policy operates, but chose instead to join in an agreed interpretation of the actual policy and its operation.   The case should be governed, Outlaw contended, by well-established precedents of the Court on creation and operation of limited public forums.   This case, it argued, is decidedly not one involved compelled speech or inhibitions on rights to associate.

Both the Outlaw brief and the law school brief strongly urge the Court not to let itself be drawn into the controversy over the constitutionality of enforcing laws or policies against discrimination based on sexual orientation, and whether such enforcement would force religious groups to abandon their moral codes.  That is not a part of this case now and has never been, they argued.

The case has drawn a fairly sizable display of amici support, with 37 separate briefs (numerically favoring the Society chapter’s side of the case, but not by a wide margin).   If the conflicting arguments mounted in the amici briefs can be fairly summarized (and there is considerable variety that makes such generalizations uncertain), the case is shaping up as a pitched battled over government authority to enforce principles of equality in access to public benefits, on the one hand, and the right of individuals with shared beliefs and values to gain access to public facilities without having to sacrifice those preferred points of view about faith and morality.  However this particular case may have been tried in lower courts, it has metamorphosed, before the Supreme Court, into a wide-ranging conflict over core constitutional principles.

The amici, on both sides, treat it with the grandeur of a constitutional dispute of the first order, clearly transcending the trial court record in which there apparently was far less dispute over what the Hastings policy actually is than has since developed.  And amici, on both sides, seek to steer the Court toward a final ruling that would best serve their organizational or philosophical interests, even though those interests clash fundamentally.  Just as one example of that: the U.S. Conference of Catholic Bishops urged the Court to be cautious not to write a broad ruling that would give sexual orientation significant new protection against discrimination in the public square, while two briefs speaking for gay rights organizations asked the Court to leave that issue aside, saying it was not present in the case, but that any Court ruling that does treat the issue should find that the chapter definitely does discriminate against students who want to take part in its activity but are unwilling to renounce their own sexual identities.

Analysis

With the case now fully briefed and ready for argument, one can look back to the Justices’ initial examination of the case and understand why the Court, before taking on the case, wanted to examine for itself how the dispute had unfolded in the trial court — the U.S. District Court.  There is a deep, and perhaps unbridgeable, gulf between what the two sides now say is the Hastings Law School policy that is at the very center of the case.  If the Justices cannot satisfy themselves what that policy actually is, it is not clear how they can move on to reach the sometimes-sweeping constitutional questions that are now presented.  In fact, while it might be merely a tactical suggestion, the law school proposed that the case has so changed that the Justices may as well cast it aside, without a ruling, because it is not what they thought they were getting.

It seems like a crucial fact that the two sides, in the District Court, joined in a stipulation spelling out the non-discrimination policy.  But it is not clear what the Court will make of that fact.  Do the actual terms of that agreement bind both sides, or are those terms open to reinterpretation or elaboration?  What differences does it make, to the legal points, if the policy is broad in scope, or specifically targeted?  Constitutional questions do not arise in a factual vacuum, and they may vary, perhaps considerably, depending upon what facts then might fill that vacuum.

Again, consider the example of one of the kinds of discrimination that the policy explicitly forbids: bias based on a student’s sexual orientation.  First, how did that get to be an issue in this case — if it is an issue?  Second, does a law school have the authority to prohibit that kind of bias in a student group?  Third, if it does have that authority, what must a student group do to show that it does not discriminate on that basis?  Fourth, does that form of discrimination exist as an idea or a belief, or as a form of conduct or behavior, so that the school and the group both know what is being regulated? Fifth, what difference does it make to the Constitution, if it has one or the other of those characteristics?

The constitutional clash in this case — between control of a public forum, and maintaining one’s private value system — poses a fundamental challenge for the Justices, even if they were able to fully engage that tension without distraction.  But it is even more challenging if the Court does not know, with any certainty or specificity, what facts lie beneath the constitutional questions.   At the oral argument, if the Justices find themselves bogging down in the details of the Hastings policy, that may well be a sign that a clear constitutional outcome will elude them.





Posted in CLS v. Martinez, Merits Cases