Friday, February 5, 2010
Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality. It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. CLS's petitioner's brief is here.
Among the amicus briefs filed in support of CLS today is this brief for (among others) various former CLS student-chapter officers, on which Rick Garnett and I are both counsel. The brief emphasizes two points: (1) When the government forbids a religious organization to engage in religion-based selection of leaders, members, etc. (i.e. "discrimination"), the government itself commits discrimination against religious viewpoints, because those viewpoints are singled out as the only animating beliefs that an organization cannot ask that its leaders and members affirm (no law prohibits the Sierra Club, a homeless-advocacy group, or any other idea-based group from enforcing its beliefs). (2) The right to refuse to choose leaders and members who depart from a group's tenets, recognized in the Boy Scouts v. Dale case among others, protects an organization not only from civil liability but from being excluded from a public forum where the government encourages a range of private speech. Among other things, the brief responds to some previous writing by Eugene Volokh arguing against any constitutional right of these student groups to select leaders and members.