Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 30, 2010

The Insignificance of the Christian Legal Society Case

I may be blind, but I do not see the law declared in the Christian Legal Society case as a serious blow to freedom of religion or freedom of speech. The Court affirmed an “all-comers” policy in the case. In order to secure subsidies from the Hastings Law School, any organization had to be open to all students. If it was not open to all students, Hastings agreed to provide access to law school facilities for meetings and access to adequate means to publicize its meetings. 

The Court did not hold that law schools have a right to discriminate against religious organizations (the question before the Court was not what Hastings had done in the past, but the all-comers policy then before the Court). The Court did not rule that Hastings could prohibit selective membership; it ruled that Hastings need not subsidize organizations with selective membership. And the Court ruled that an all-comers policy should not be approved if it were a pretext to discriminate against the Christian Legal Society. The Court remanded to determine whether the policy was pretextual if the issue was still procedurally open to the plaintiffs.

Justice Alito disagreed with the Court on its understanding of the record and Alito decided many factual issues for the first time in the Supreme Court, issues that had not been reached by the lower courts including whether the Society really had access to facilities for meetings.

But the legal differences between Justice Ginsburg, author of the majority opinion, and Justice Alito were thin. They did disagree whether an “all-comers” policy was reasonable. Justice Ginsburg argued it was reasonable because an all-comers policy ensured that students were afforded leadership, educational, and social opportunities, that Hastings students are not forced through their student fees to fund a group that would reject them as members, that it helped Hastings enforce its anti-discrimination policy (and state anti-discrimination laws) without the necessity of determining the basis for membership restrictions, and, by bringing together people of diverse backgrounds, that it encouraged toleration, cooperation, and learning. Any claim that hostile students would take over an organization was contrary to the experience of the school and unduly speculative. The reasonableness of the policy was also indicated by its measured character. The school offered access to school facilities to conduct meetings and the use of chalkboards and some bulletin boards, and it could take advantage of electronic media and social networking sites.

I personally would not support an all-comers policy (and I think Justice Alito has a good rejoinder on the reasonableness issue though I do not recall a response to the student fees argument). I also worry that an all-comers policy could conceal discriminatory interests (though the fact that it applies to all organizations undercuts that worry). But I do not think the policy is constitutionally unreasonable.

So long as groups with selective membership policies have access to school facilities to conduct meetings and the means to communicate about them, and that is the legal assumption of Justice Ginsburg’s opinion, I do not think this case is very significant. 

cross-posted at religiousleftlaw.com


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I agree on the insignificance. A couple of posts below, Justice Alito is quoted: "I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country." What are the specific, practical harms here going forward? I gather Christian law students -- at Hastings and elsewhere -- will be able to express their beliefs just fine going forward, if they choose to do so. That is not to say that I believe the case correctly decided; just that, practically, I don't see the great harm. Overheated rhetoric often attaches to commentary about S.Ct. decisions (corporate speech on elections, anyone?), when the practical fallout is often, well, not much.

Posted by: DFoley | Jun 30, 2010 8:48:25 AM

I just wonder what the reaction would have been to the school's policy if the group involved had been something other than a Christian group.

Also, I note that there is a Hastings Catholic Law Students Association, a Hastings Association of Muslim Law Students, and a Hastings Jewish Law Students Association (among many others) who didn't seem to need to take a case to the Supreme Court.

Posted by: David Nickol | Jun 30, 2010 12:37:56 PM

Let the Christians organize a takeover of the campus gay rights group and see what happens. Let someone try this on the local Muslim group and see what happens. I believe this horrible decision will be used to silence and shut down Christian groups, but no others.

Posted by: Fr. J | Jun 30, 2010 2:11:54 PM

Fr. J,

But nobody tried -- or organized to try -- to take over the Christian Legal Society.

Why do you feel the need to invent improbable scenarios rather than discuss the case at hand? The CLS was not under attack from non-Christian students at Hastings. Its dispute was with the school administration over recognition (and funding) as an official student group. Of course it is possible that the Hastings Ballroom Dance Club may be infiltrated and undermined by ballet fans, or the Golf Club may be the object of a hostile takeover by croquet players. The Hastings Democrats may try to take over the Hastings Republicans, or the Othello Club (to promote the board game Othello) may be infiltrated by Monopoly players. But how likely is any of this, really?

Posted by: David Nickol | Jun 30, 2010 4:53:04 PM

A setback for Freedom of Expression? or Assembly? LUDICROUS. There is no Constitutional right to receive state funding to speak or assemble. CLS was never hindered in any way from their free speech or assembly. Why don't some of you actually read the Constitution or take a Constitutional law course. The only shocking thing about this case is that it was only 5-4. The Supreme Court is undeniably cautious and fairly conservative, this is an open and shut case and Alito's concerns are entirely speculative. CLS' arguments are largely nonsensical and a twisted reading of the law. They claim that a non-discrimination policy discriminates against them (yes, it does, but not because they are Christians, because they discriminate against others). Jesus accepted peoples of all origins and religions, why can't the so-called "Christian" Legal Society.

Posted by: amy | Jul 1, 2010 4:06:04 AM

Good point David Nickol!! That's the irony of all this. The only student group in Hastings 100-year history that ever tried to enact a policy to exclude certain students was the Christian Legal Society. The Muslim, Black and Jewish student groups all welcome all students - whether white, asian, muslim or Christian - to join their clubs as members. Amazing how ONLY ONE student group which teaches Christianity discriminated against others.

How quickly Christians forget that they were once discriminated against and thrown to the lions in Rome. How quickly they forget.

Posted by: amy | Jul 1, 2010 4:11:54 AM

The expansive, strident caselaw lionizing free speech and protecting it in government forums and for students--even middle school students--dates from the liberal Warren Court and before, speaking heroically, even in purist terms, in cases involving speech against the Vietnam War, and for Civil Rights, but protecting it regardless of content, and insisting that speech should enjoy unfettered protection despite sometimes violent reactions--indeed sometimes because of violent reactions, as the Court described in heroic and idealistic terms the First Amendment's very existence in order to protect unpopular speech by minority views--and to their credit they applied their absolutist principles even to protect speech by the likes of the KKK on a fully equal basis, not relegating them to second-class status in the forum. Does anyone really think that if the present case were against an anti-Iraq War group, and was issued by the Rehnquist Court plus appointees of George W Bush (following Rehnquist's minimalistic view of free speech--from which Kennedy himself dissented in Hill v Colorado) that we would have liberals here and in greater society defending a decision that allows majorities to kick minorities out of a government speech forum and create two tiers of speakers, one more privileged and one less? Does it trouble anyone here that Catholic liberals would be even less consistent defenders of free speech than their secular counterparts in this respect, with the likes of the Washington Post and LA Times dissenting from the NY Times and editorializing against the policy?

Posted by: Matt Bowman | Jul 1, 2010 8:33:41 AM

Dave, I think Amy proves my point. She doesn't like what they believe so they should be discriminated against. You are correct that Christians would not try to take over a gay club to silence it, that would be morally wrong. But I guess it is okay to subvert the Christian group. If a gay group stated that pedophiles should not be allowed to join that would be illegal. If Jews tried to join the Muslim group to take it over to support Israel. I expect the Muslims would fight back harshly and it would not end up in court.

The door is now open. Groups are not permitted, by the State, to regulate their own membership. But students do have to pay fees that fund groups they don't agree with. Freedom of speech and association have taken a big hit. Those who disagree with Christianity rejoice, but have thrown the baby out with the bath water. Amy, ironically gays have mentioned the lions in conjunction with Christians.

Posted by: Fr. J | Jul 1, 2010 12:03:39 PM