“We’re different in a good way/Together’s where we belong”
In Christian Legal Society v. Martinez, the U.S. Supreme Court today rejected an effort by CLS to challenge a rule at Hastings College of Law in San Francisco limiting “registered student organization” (RSO) status to groups that allow all students to participate, become members, and seek leadership positions, regardless of the student's status or beliefs. Because CLS limits participation to students who subscribe to a specified set of religious beliefs (thereby excluding “unrepetant” sexually active lesbigay students), Hastings, a public law school in the University of California system, denied the group RSO status, which comes with certain benefits including financial support. CLS filed suit, arguing that this “all comers” rule violated their First Amendment rights (applicable to the states because of the Fourteenth Amendment) to free speech and expressive association. Voting five to four, the Court rejected those arguments today (full opinions here), leaving only a possibility that CLS might try on remand to the lower courts to show that Hastings discriminatorily applied its all-comers policy.
Associate Justice Ruth Bader Ginsburg wrote the majority opinion, which was joined by Associate Justices John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Sonia Sotomayor. At the outset, the majority limited the constitutional claims they would consider to challenges to the all-comers policy, which is how Hastings interpreted and implemented a rule written in terms as prohibiting specified forms of discrimination. Because CLS had stipulated that this is how the policy is now interpreted and applied, and that is how the lower courts had analyzed the case, the Supreme Court majority held CLS to that concession. The dissenting Justices (Associate Justice Samuel Alito joined by Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas), in contrast, tried at some length to call this factual stipulation into question, though they were unable to persuade the majority Justices to look at the other arguments CLS wanted to pursue.
The majority analyzed the RSO program as a kind of “limited public forum,” created by Hastings’s decision to open property (including money) under its control but to limit it “to use by certain groups.” When the government creates such a limited public forum, its regulations of speech or association must be reasonable in light of the purposes and function of the forum and “all the surrounding circumstances,” and they must not discrminate on the basis of the viewpoint of the speakers, here, students groups admitted to the RSO program. Hastings program ensured that students were not subjected to mandatory fees that could then go to groups that would exclude them; avoids inquiries into student groups’ motivations to discriminate; brings together diverse students and thus Hastings believed contributes to tolerance and understanding; and it reflected Hastings’s decision not to subsidize discriminatory conduct of sorts disapproved by state antidiscrimination laws. CLS had other ways to insist on its membership principles and still get its message out and even to meet in school facilities, but “CLS enjoys no constitutional right to state subvention of its selectivity.” The all-comers policy applied to all student groups regardless of their beliefs and so was viewpoint-neutral, the Court held. The lower courts would have to determine whether CLS had properly preserved its argument that the all-comers policy was discriminatorily applied to them and, if it was, whether that was in fact the case and if so whether that violated CLS’s rights.
Justice Stevens joined the Court’s opinion but also wrote a separate concurring opinion to address one argument in Justice Alito’s dissent. Hastings’s written Nondiscrimination Policy prohibits unlawful discrimination on various grounds, including discrimination on the basis of religion. Alito and his dissenting colleagues asserted that, if Hastings refused to grant CLS an exemption from that policy, that would be “plainly” unconstitutional because applying the ban on religious discrimination to CLS would discriminate against the group on the basis of religion. Justice Stevens’s concurrence explained why “[t]here are numerous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.” (Justice Kennedy also wrote a short concurring opinion, underscoring how the RSO program operated to bring diverse students together and how that differentiated it from a different public forum program that he had years earlier found to be unconstitutionally restricted in a case called Rosenberger v. Rector and Visitors of the University of Virginia.)
Justice Alito’s dissenting opinion as noted addresses different constitutional claims than just the one considered by the majority. It views the all-comers policy as a pretext for Hastings to penalize CLS because of disagreement with or disapproval with CLS’s views. And it complains that “the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups.”