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Supreme Court to consider case against California law school

By Robert Barnes
Washington Post Staff Writer
Sunday, April 18, 2010

SAN FRANCISCO -- At the oldest law school in the West, law is being made this semester, not just taught.

In a case that carries great implications for how public universities and schools must accommodate religious groups, the University of California's Hastings College of the Law is defending its anti-discrimination policy against charges that it denies religious freedom.

The college, which requires officially recognized student groups to admit any Hastings student who wants to join, may be well-meaning, says the student outpost of the Christian Legal Society. But the group contends that requiring it to allow gay students and nonbelievers into its leadership would be a renunciation of its core beliefs, and that the policy violates the Constitution's guarantee of free speech, association with like-minded individuals and exercise of religion.

"Hastings' policy is a threat to every group that seeks to form and define its own voice," the group told the court in a brief. The case, Christian Legal Society v. Martinez, will be argued in the Supreme Court Monday morning.

Hastings counters that the CLS, a national organization that seeks to "proclaim, love and serve Jesus Christ through the study and practice of law," is demanding special treatment. It wants the college's official stamp of approval and the access to benefits and student activity fees that come with it, but it will not commit to following the nondiscrimination policy that every other student group follows.

The CLS is not being forced to do anything, Hastings contends. "A group may abide by the school's viewpoint-neutral open-membership policy and obtain the modest funding and benefits that go along with school recognition, or forgo recognition and do as it wishes," it said in its brief.

The case poses a quandary for a court that has recognized both the ability of public universities and schools to control the use of their facilities and funds and the right of religious groups to select members based on their beliefs. It comes as religious groups have become more active and litigious in demanding a place in the public forum of free speech.

Christian groups have brought suits against similar policies across the country, from the University of Florida to Boise State University. "In every case . . . 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 CLS brief asserts.

The controversy also raises questions about who needs protection. CLS lawyer Michael W. McConnell, a former federal judge and director of the Stanford Constitutional Law Center, likens the underdog status of Christian groups at liberal law schools such as Hastings to the way gay rights groups might have felt on a Southern campus years ago.

"One of the things I find kind of pleasantly ironic about the briefing in this case is we find ourselves relying on about a dozen cases that involve gay rights groups in universities," said McConnell, who was appointed as an appellate judge by President George W. Bush. The other side, he said, relies on decisions and legislative acts that helped Bible clubs.

Hastings has also brought in high-powered help. It is represented by Gregory G. Garre, a solicitor general under Bush who is now in private practice. The National Center for Lesbian Rights, which represented a campus gay rights group called Hastings Outlaw that is a party to the case, has made way at the high court for Washington lawyer Paul M. Smith. He successfully argued Lawrence v. Texas, in which the court struck down a state law making homosexual conduct illegal.

They are joined by 37 organizations and states who have filed amicus briefs. Notably missing is the Obama administration, which chose not to get involved.

Hastings is far from the usual image of an ivy-clad law school; it is a collection of mid-size buildings on the edge of San Francisco's gritty Tenderloin district. It draws applicants interested in public service, said Leo P. Martinez, its acting chancellor and dean. About a third of its students go to work for government or nonprofit groups, he said, and more California judges are graduates of Hastings than of any other law school.

There are nearly 70 recognized student organizations, including law-oriented groups such as the Federal Society, ethnic groups such as the Middle Eastern Law Students Association and groups such as ballroom-dancing enthusiasts and Hastings Legal Vines, a wine club.

Martinez said he has been asked if the school's policy means that a Jewish organization would have to allow a Nazi sympathizer to join, and his answer is yes. "That's a necessary consequence of being nondiscriminatory," he said. "We accept students of all stripes. We can't do that and then tell some students, 'Listen, there are going to be some aspects of the educational experience at this school that are foreclosed to you.' "

Official recognition brings the right to use the Hastings name and logo, access to an e-mail address with a link to the law school's network, office space and meeting rooms, and small grants from student-activity fees and university funds.

A Christian group was part of the landscape for years. But when it decided to affiliate with the national CLS, it was told the group's ban of gays and nonbelievers in leadership positions violated the college's policy and its insistence that all Hastings students be allowed to join any club.

The CLS sued. A federal judge sided with the school, saying its blanket policy did not single out the religious group because of its views. The U.S. Court of Appeals for the 9th Circuit affirmed.

The CLS's brief says Hastings' "all-comers" policy is a litigation strategy, at odds with how the college has actually treated other groups. It is not viewpoint-neutral, the brief says, because the policy "targets solely those groups whose beliefs are based on 'religion' or that disapprove of a particular kind of sexual behavior."

But it said all groups would be threatened if required "to admit as leaders and voting members those who disagree with their core beliefs and viewpoints."

Hastings counters that the CLS stipulated during the suit that the anti-discrimination policy applied equally to all groups, and said in its brief that the religious organization has created "straw men" to try to convince the court that there are greater constitutional issues to be decided.

Garre told the court in his brief that the CLS wants it to find that religious and other groups with a point of view "not only may insist that the public subsidize their practices, they may insist on using the state's name while doing so. Nothing in the First Amendment compels that remarkable result."


APRIL 16, 2010

Free Association and the First Amendment

The Supreme Court will decide if a student religious group can choose its own members.

The Wall Street Journal

Can a public university force a Christian student group to accept as leaders students who explicitly reject core tenets of the group's faith? On Monday the Supreme Court will entertain precisely this question—and the First Amendment right to freedom of association hangs in the balance.

The facts in Christian Legal Society v. Martinez are straightforward. The Christian Legal Society (CLS), an evangelical Christian student group, accepts all students at its functions but requires voting members and leaders to sign a Statement of Faith. The statement endorses "biblical principles of sexual morality," and it makes clear that a student who "advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman" isn't eligible to vote for or become a group leader.

There's nothing strange here; one wouldn't expect the College Democrats to accept as voting members or leaders those students who advocate or vote for Republicans. But the University of California's Hastings College of the Law, in San Francisco, seeks to enforce a politically correct notion of inclusiveness.

In order to gain official recognition, funding and equal access to campus, Hastings insists that every group must allow all students to become voting members, even if they fundamentally disagree with the group's viewpoint or want to vote to disband the group. Applying this rule, Hastings denied CLS recognition, excluding the group from participating in campus life on equal terms simply because it holds fast to sincerely held religious beliefs.

Attempts to deny Christian groups recognition based upon their interpretation of sexual morality have been common for years, with incidents occurring at both public and private colleges as prominent as the University of North Carolina at Chapel Hill, Tufts, The Ohio State University and Rutgers. These attempts usually failed due to bad publicity and court orders favoring the religious students, but last year the Ninth Circuit Court of Appeals broke the trend and endorsed Hastings' exclusion of the CLS. The fallout was immediate, as Boise State University and the University of Montana de-recognized Christian organizations. Many more public colleges will follow their lead if the high court rules for Hastings.

According to these schools, the requirement that would-be voting members actually agree with a group's understanding of Christian doctrine amounts to "discrimination." (Never mind that CLS accepts gay students—or students who have engaged in premarital heterosexual sex, for that matter—as long as those students accept the society's standards of sexual morality and are repentant for their own occasional failures.)

This requirement is not invidious discrimination; rather, it's a form of expressive association and it's protected by the First Amendment. As the Supreme Court held in Roberts v. U.S. Jaycees (1984), "freedom of association plainly presupposes a freedom not to associate." The government and its agents—including public universities—cannot interfere with the right of people to organize around shared beliefs.

The expansive interpretation of "non-discrimination" insisted upon by many public colleges has little in common with the real world. Many religions—not least Christianity, Islam and Orthodox Judaism—include proscriptions on homosexuality and much else about sexual morality. Student religious groups cannot be required to abandon or lie about these tenets of faith as a condition of obtaining equal access to campus life.

Would gay and lesbian student groups really want to be forced to accept as voting members the parishioners of the Westboro Baptist Church, who have for years picketed the funerals of gay murder victims and American soldiers (whose deaths they claim are God's punishment for the nation's sin of toleration)? Following the logic of the Ninth Circuit, the most virulently anti-gay student (or any number of such students) could not be refused a vote.

In its brief to the high court, CLS concludes with the observation that if the university prevails it would destroy the "live and let live" status quo that the First Amendment has protected thus far in our diverse and contentious country. Our nation's founders were wise to ensure that in the United States each faction has its voice but has to grant its opponents a voice as well.

If the Supreme Court decides that public colleges may deny religious groups the same rights as any other group on campus, the result will be less, not more, genuine diversity on campus.

Mr. Silverglate, a lawyer, is co-founder and current board chairman of The Foundation for Individual Rights in Education. He has signed FIRE's friend-of-the-court brief filed in this case.