CLS v. Martinez Oral Arguments

Monday morning at 10 am eastern, the Supreme Court will hear arguments in Christian Legal Society v. Martinez, a case that will have a lasting impact on how religious student groups are treated by public universities.

Video and transcript of PBS's Religion & Ethics Weekly piece on the case, airing on television tomorrow, are available already online. The reporting is fine, and it's a pretty balanced piece, yet the issues need more than a five-minute treatment. Here are just a few of the misconceptions that might remain after one watches the interview:

• "CLS discriminates based on sexual orientation, but thinks that its right to associational speech trumps the other issues." This isn't true. Conduct, not orientation is what is prohibited by CLS, and CLS asks all of its members, whatever their "orientation," to abstain from sex outside of traditional marriage.
• "This case is about public funds." Not so. Leo Martinez, in the PBS interview, says that because Hastings funds their groups with "public money," they can't fund a group like the Christian Legal Society. In reality, all student groups are funded by student activity fees. While CLS students are forced to pay for gay rights advocacy with their fees, their voice is silenced because of their particular beliefs about the way the world works.
• "CLS wants treatment that is different from other student groups on campus." This is not true, either. All groups, even religious groups, have the right to choose their leaders and members-- those who carry its message-- without being excluded from campus life. This is the gist of the case. CLS was kicked off campus-- no email server for its announcements, no classroom chalkboards, no web space, no funding-- because they have the temerity to actually believe orthodox Christian doctrine.
• "This is a case about the separation of church and state." It is not. Since at least 1981, the law has been clear that public universities don't violate the First Amendment's Establishment Clause when they recognize religious student groups, and in 1995, the court held that public universities can give money to religious student groups. In the 80's and 90's, hostile schools tried to de-fund groups through establishment clause litigation. Since that tactic didn't work, they now try to exclude them from campus by crying "discrimination."
  

When public schools are permitted to interfere if the Democratic Law Students' Association rejects republican members, or the Marxist Student group won't allow capitalists on the leadership ballot, something is wrong with world.

No student was ever excluded from a CLS meeting or banned from membership at Hastings, and to my knowledge, no gay student has ever been excluded from CLS. The case arose because the university didn't like the religious standards and requirements of the Christian Legal Society and refused them access to campus life.

The briefs from all parties and friends of the court are available online.

Be in prayer for the advocates and justices in this case.

Reaction to Arguments in CLS v. Martinez

Some news and blogger reaction to yesterday's oral argument in CLS v. Martinez:

• Some cogent analysis from beliefnet
• Professor Steven Smith weighs in over at the Law, Religion, & Ethics blog, quoting some interesting commentary from gay rights advocate and law school dean Joan Howarth
  
• From the SCOTUS blog: Big Decision on an Uncertain Record, and a summary of the main media stories
• The Wall Street Journal has a piece that doesn't quite understand that it's not about funding
  

For a more interactive approach, join the discussion on the Cross & Gavel Facebook page. If you have questions, concerns, insights, or analysis, jump on into the Facebook discussion!

"Taxpayer" Money and Christian Legal Society Chapters

This past weekend, Parade magazine did a small feature on the CLS v. Martinez case that will be heard by the Supreme Court on April 19. I've discussed the case before, but it essentially involves the question whether the Constitution permits a public law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments. (For the Petitioner's Brief, go here).

Interestingly, the otherwise straightforward piece, that quotes advocates on both sides of the issue, includes an "online poll" asking:

"Should campus religious groups that exclude non-believers get taxpayer funds?"

Interesting question. The problem is that it has nothing to do with CLS v. Martinez, in which there are neither taxpayer nor public funds at issue. As The Buzz at CLS notes:

Taxpayer funds have nothing to do with the case. This is a a major error in fact. The only funds (they are not "public funds" as one of the other sources erroneously claimed) at issue are student activity fees, and the issue is their equal distribution to student groups.

What's happening right now is that CLS students are being forced to fund, through student fees, groups that conflict with their beliefs, but the school has set up a system that withholds those funds from Christian groups if they refuse to abandon the very reason for which they exist! Of course, the Supreme Court in Rosenberger v. University of Virginia, 515 U.S. 819 (1995), held that public universities could not engage in viewpoint discrimination against religious student groups in distributing student activity fee funds, which is exactly what is happening here.

The case is about recognition by the university, which brings with it the ability to participate fully in the community life of the school and full access to the services and tools used by other recognized student organizations.

Maybe Parade's poll question should have been:

"Should student groups whose leaders are required to share the group's beliefs have equal access to student fees?"

(By the way, my podcast interview with the Christian Legal Society's lead counsel, Kimberlee Wood Colby is available on iTunesU).

Transcript of the CLS v. Martinez Oral Argument

The Supreme Court website contains a link to the transcript of today's oral argument in Christian Legal Society v. Martinez.

Enjoy.

I welcome any comments on the very brisk Q&A.

Some "Cultural" Implications of CLS v. Martinez

Today at Duquesne Law, I spoke to a small group of students and faculty on the cultural consequences of the Supreme Court's decision in Christian Legal Society v. Martinez.

I won't go into detail here, but here is a snippet:

If ever there was a community crying out for a diversity of voices, suggesting moral solutions to the problems caused by rampant pragmatic instrumentalism, it is the American legal academy. American law schools are the most morally sterile environments on the planet, having reduced law to social engineering and the engineers to power politicians. We sure don't read Blackstone anymore. Heck, we don't even read Rawls.

Hastings-like policies intentionally sterilize one of the few remaining fertile fields for discourse-- student organizations-- for the sake of marginalizing religion. In doing so, these schools shoot themselves in the foot at a time when they can ill afford the injury. Hastings, and like-minded administrations, who adopt policies that restrict all speech in the name of free speech, gut the conscience of the law school in the following ways:

• They discourage diverse moral inquiry and discussion. Let's face it: law faculties are nowhere near as diverse of student bodies. And not nearly as morally centered. The lock-step pragmatic orthodoxy of the academy is breathtaking.
• They usher in the tyranny of the majority (the silly all-comers policy is designed to allow majority opinion to trample unpopular speech);
• They crush true scholarship-- the pursuit of truth, beauty, and goodness for their own sake-- in favor of the prevailing politically correct orthodoxy;
• They continue to encourage the disintegration of the human person, shouting that moral knowledge is not really knowledge, and that religion has no place in public life.

All the while, their schools look more and more like technical colleges and their graduates sell out to greed, materialism, and narcissism. Go figure.

Christian Legal Society v. Martinez

I haven't posted since the dreadful decision in the Martinez case two weeks ago, so I thought I ought to say a word or two.

On June 28, the Supreme Court issued its opinion affirming the 9th Circuit's decision that Hastings College of Law could de-recognize a CLS law student chapter because it required its members and leaders to sign a statement of faith and adhere to that statement in their conduct.

Much of the commentary has focused, of course, on CLS as a group that "bans gays," but this is of course a distortion, since no homosexual has ever been "banned" from a meeting. It is true that CLS has behavioral standards for its leaders and members, which include abstention from unrepentant extramarital sexual activity, for example, but it would be just as accurate to call CLS a group that "bans atheists." Hastings Law School kicked CLS off campus, not as a result of any action it took against individuals or groups, but because its constitution included a requirement that members sign a statement of faith and engage in conduct consistent with that statement. In short, despite media coverage to the contrary, CLS groups do not "ban gays" from attending meetings or concern themselves with "sexual orientation." The requirement of chastity outside of marriage is something that the law school seized upon as "discriminatory" even though it is a rule that CLS has applied to all, regardless of sexual orientation.

Because no other group has ever been singled out for this sort of treatment on the basis of the administration's reading a student group constitution, the Court remanded the case, giving CLS the opportunity to prove that Hastings' "unique" policy was a mere pretext, including whether the policy was applied to other groups or just CLS. Initially, the college claimed that CLS "discriminated" because of its requirements to sign a statement of faith and attempt to live by it.

The court did not reach a decision, however, regarding the school's written discrimination policy, merely that Hastings had de-recognized CLS because it did not comply with the law school's unwritten (and heretofore un-applied) "accept-all-comers" policy for student groups. The policy, according to Hastings, requires all groups to let any student join, regardless of their adherence to the group's principles. White supremacists must be permitted to join the Black Law Students Association, and Democrats must allow Republicans to join-- or lead-- their group. Because CLS is the only group in the history of the school to be de-recognized under this policy, and because it is hard to believe that any institution of higher learning would have such a policy, CLS argued that the policy was a mere pretext. Justice Ginsberg, writing for the Court, held that this issue was not fully heard in the lower court, and CLS may raise it on remand. The record seems to demonstrate that Hastings did in fact single out CLS for application of its "all comers" "policy" and that other groups had constitutions that required their members to adhere to their core beliefs, but that were nonetheless granted recognized student group status.

In addition, the holding is very narrow, and applies only to the Hastings-style "all comers" policy, which does not exist at any other public university. This means that CLS v. Walker 453 F.3d 853 (7th Cir. 2006) is still good law. Walker held that a traditional non-discrimination policy may not be applied to religious groups who require a statement of faith from members.

Justice Alito, writing in dissent for four justices, summarizes:

The Court's treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS's application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups-- groups to which, as Hastings candidly puts it, these institutions "do not wish to . . . lend their name[s]."

Some Links

Overview: Christianity Today and World Magazine have informative pieces.

Free speech perspective: FIRE and Huffington Post.

Scholarly discussion: Mirror of Justice Blog posts from Greg Sisk, Rick Garnett, Rob Vischer, and others. See also this op-ed from John Inazu.

The legal status of most non-discrimination policies: The Chronicle of Higher Education

Coolest. Brief. Ever.

I have just posted my podcast interview with Kim Colby, Senior Counsel at the Center for Law and Religious Freedom, over at the Cross & Gavel iTunesU page. Kim is lead counsel in the Christian Legal Society v. Martinez case, which I have mentioned before.

As readers will recall, the case involves a Christian Legal Society student chapter that was de-recognized by the Hastings Law School administration for allegedly running afoul of the law school's anti-discrimination policy. It will be heard by the Supreme Court in April, and we expect a decision in late June.

Kim Colby is a wonderful lawyer who has been involved in the religious liberty arena for three decades, and her expertise and insight have been invaluable in building a team to represent the Christian Legal Society's interests in this case. Michael McConnell, one of the finest and most respected first amendment scholars in the country, is on board to argue the case.

The case raises interesting and important issues, and I hope you'll listen to my discussion with Kim. If the iTunes link gives you trouble, access it through the Cross & Gavel homepage.

There is one fun and interesting side note that I'd like to highlight, and it involves one of the many amici that have weighed in with friend briefs on the CLS side. Of the 21 amicus curaie briefs, the most unique is the Brief of Amici Curaie Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society), Evangelicals for Social Action, and National Association of Evangelicals in Support of Petitioner. Fortunately, the brief is more interesting -- and a bit shorter-- than its title. In fact, it is downright amazing.

What is amazing about this short (even the standard appellate mega-margins, it is a mere 20 pages) piece of advocacy is that it is a beautiful and edifying theological primer . . . and a fine legal brief. All at once.

It has to be the coolest brief ever.

The purpose of the brief is to provide the historical-theological and biblical context of the position of organizations like CLS, who sometimes take unpopular or counter-cultural stands based on Scripture, and ask their members to act out their beliefs. With great economy of words and generosity of spirit, the brief meets this goal, setting out the basics of some fundamental Christian doctrines. Here is the outline of the argument:

A. Evangelical belief concerning the Bible

B. Evangelical belief in standards of conduct for leaders and regular members

C. Interpretation and application of the moral commands of the Bible to the present

D. Not based on animosity

E. A distinction between desires and conduct is common in evangelical ethical thinking

F. The Bible’s teaching on sexual conduct

G. Agreement among evangelical groups

H. CLS’s belief concerning the Bible leads to its Statement of Faith and its interpretation of the Statement

I. An attempt to compel disobedience to the Word of God

J. Evangelical Christian churches and organizations cannot comply with such a nondiscrimination policy

K. Broader implications

Read it and marvel. But here is a taste:

There is no animosity or malice toward any group of people (such as adulterers or homosexuals) that has played any role in the formulation of the CLS Statement of Faith and its interpretation, or in the practice of similar policies by Christian groups throughout history, or in the inclusion of these moral standards in the Bible in the first place. Indeed, animosity toward any such group would be contrary to the Bible itself, for it would violate the command of Jesus to “love your neighbor as yourself” (Matthew 22:39) and even to “[l]ove your enemies, do good to those who hate you, bless those who curse you, pray for those who abuse you” (Luke 6:27).

Therefore it would not be surprising that a student who was known to engage in homosexual conduct would nonetheless be regularly welcomed at CLS meetings at Hastings College of Law, though not invited to become a voting member. This is exactly what one would expect from Christian students seeking to be obedient to both the biblical standards of sexual conduct for leaders and members and the biblical commands to love one’s neighbor.

Good stuff.

(By the way, all the briefs are accessible from the CLS website).

Supreme Court to Hear CLS Student Group

Here is the press release from the Christian Legal Society:

WASHINGTON — The U.S. Supreme Court Monday agreed to decide whether a public university can refuse to recognize a religious student group because the group requires its leaders to share its religious beliefs. Attorneys with the Christian Legal Society and the Alliance Defense Fund Center for Academic Freedom represent a student chapter of CLS, which Hastings College of the Law in San Francisco refused to recognize because the group requires all of its officers and voting members to subscribe to its basic Christian beliefs.

“Public universities shouldn’t single out Christian student groups for discrimination. All student groups have the right to associate with people of like-mind and interest,” said Senior Counsel Kim Colby with the CLS Center for Law & Religious Freedom. “We trust the Supreme Court will not allow Hastings to continue to deprive CLS of this right by forcing the group to abandon its identity as a Christian student organization.”

“Christian students have the right to gather as Christians for a common purpose and around shared beliefs,” said ADF Senior Legal Counsel Gregory S. Baylor with the ADF Center for Academic Freedom. “It’s completely unreasonable--and unconstitutional--for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.”

CLS Litigation Counsel Timothy J. Tracey, now with ADF, argued Christian Legal Society v. Martinez before the U.S. Court of Appeals for the 9th Circuit in March. The appellate court refused to reverse a district judge’s decision against CLS, so the case was appealed to the U.S. Supreme Court.

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There's some buzz, too:

Wall Street Journal Law Blog, Volokh Conspiracy, Christian Law Journal, Mirror of Justice, Fox News

Update: Touchstone's Mere Comments points us to Get Religion, and the NYT weighs in as well.