Constitutional Watch: “Christian Legal Society v. Martinez - The Supreme Court Just Doesn’t Get
Author: Diane Rufino | Published: July 14th, 2010
Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez Fall Term (October) 2009, Decided June 28, 2010
On June 28th, the Supreme Court handed down yet another disappointing and discouraging decision regarding religious expression and association in this country. It seems that the Court with the responsibility to preserve the intention and integrity of our Constitution and to see that it is faithfully executed and respected, has turned its back on the one group that has been needing its advocacy the most…. Christian religious groups. In its recent decision touching on religious rights, in the case Christian Legal Society Chapter of the Univ. of Calif., Hastings College of Law v. Martinez, the Supreme Court upheld a California law school’s denial of recognition to a Christian student group by a narrow and disappointing 5-4 decision. The American Center for Law and Justice (ACLJ) and the Alliance Defense Fund, both focusing on Constitutional law and in particular, First Amendment Rights, publicly stated that they are "extremely disappointed" in the decision. And Justice Samuel Alito, who wrote a scathing dissent, stated that this decision represents “a serious setback for freedom of expression in this country.”
The facts of this case are as follows: Hastings College of the Law, a school within the University of California public-school system, extends official recognition to student groups through its “Registered Student Organization” (RSO) program. Several substantial benefits are associated with this school recognition status, such as funding, access to facilities and channels of school communication (including school bulletin boards and school email), and Hastings name and logo. In exchange for recognition, however, RSOs must abide by certain conditions, including mandatory compliance with the school’s Nondiscrimination Policy (which tracks state law barring discrimination on a number of bases, including religion and sexual orientation) and its “all comers” policy (that is, RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of his or her status or beliefs). At the beginning of the 2004–2005 academic year, the leaders of an existing Christian RSO formed the Christian Legal Society (CLS) by affiliating with a national Christian association that charters student chapters at law schools throughout the country. These chapters must adopt bylaws that, among other things, require members and officers to sign a “Statement of Faith” and to conduct their lives in accordance with prescribed principles. Among those tenets is the belief that sexual activity should occur only between a man and a woman and should not occur outside of marriage. CLS interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct” or holds religious convictions different from those outlined in the Statement of Faith. Furthermore, CLS’s religious beliefs prevent non-Christians from exercising control over the group by becoming voting members or serving in leadership positions. When CLS applied for registration in 2004, Judy Hansen Chapman, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, a written policy designed to provide equal access for all students to college affiliated and supported activities and which forbids recognized groups from discriminating on a number of factors. That policy provides in pertinent part that “the University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”
If you have read this case, you will understand what I am about to try to explain. Otherwise, if this review is the first you’ve read on this case, you’ll be struck by the confusion that this case presents. As I’ve outlined in the previous paragraph, there are two policies that Hastings uses with respect to its registered student organizations: The Nondiscrimination policy and the “all-comers” policy. The CLS was not aware of the second policy. In fact, in the correspondence from the school denying recognition, the only reason communicated to CLS was that its bylaws violated the Nondiscrimination policy. When a student representative of the CLS approached school officials to seek $250 in travel funds so a chapter officer could attend a national conference of the Society, officials stalled the request, concluding that the chapter’s new by-laws violated Hastings’ Nondiscrimination policy. A few days later, the chapter met with Ms. Chapman and again the group was told that its bylaws violated the school’s Nondiscrimination policy. The group was advised that they would need to revise their bylaws and make them more compliant if they wanted recognition. After the chapter refused to alter its by-laws to conform to the school policy, official recognition was denied, and the requested travel funds were withheld, which led the chapter to sue in federal District Court. (Martinez represents UC Hastings, the party being sued). The CLS brought suit on the basis of religious discrimination, with respect to the school’s Nondiscrimination policy. As far as the record reflects, Ms. Chapman made no mention of an “accept-all-applicants” policy. The confusion in the case comes from this policy, which only made its entrance in the case after the suit was initiated. It was not until July 2005, when the then-Dean of the Law school, Dean Kane, was deposed (over a year after the initiation of the suit), that the “all-comers policy” was introduced as a policy (together with the Nondiscrimination policy) that the school uses to condition recognition of an RSO. Yet it is this policy that turned out to be the issue upon which the Supreme Court decided to focus on the case.
It was not until 2005 that Hastings claimed it rejected CLS’s application for RSO status because that group’s bylaws did not comply with Hastings’ open-access, “all-comers” policy. That claim contradicted the record. According to the Dean, Hastings rejected the application because CLS excluded students for membership or leadership positions based on religion and sexual orientation, in violation of the “all-comers” policy. Yet according to the official record, the reason given for denial of recognition was violation of the Nondiscrimination policy – the group’s bylaws were in contradiction to the spirit of the policy. In other words, Hastings denied official recognition to the Christian Legal Society after CLS said it could not abide by the school’s non-discrimination policy since that policy forbids student groups from discriminating on the basis of, among other things, "religion." It is important to distinguish between these two policies when reviewing the case and the decision of the majority of the Court.
CLS filed this suit for injunctive and declaratory relief under 42 U. S. C. §1983 (Federal statue providing a civil action for deprivation of rights, originally enacted as part of the Civil Rights legislation of 1871; also originally known as the “Ku Klux Klan Act”), alleging that Hastings’ refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. On cross-motions for summary judgment, the District Court ruled for Hastings. The District Court held that CLS presented no genuine issue of controversy and so there was no need to move the case forward; hence, judgment was granted to Hastings. The court held that the “all-comers” policy, as a condition to being recognized as an RSO, which is defined legally as a “limited public forum” for speech and expression purposes, was both reasonable and viewpoint neutral (ie, the language of the policy didn’t show any obvious discrimination), and therefore did not violate CLS’s right to free speech. Nor, in the court’s opinion, did Hastings impermissibly burden CLS’s right to expressive association: Hastings merely placed conditions on the use of school facilities and funds. The court also rejected CLS’s free exercise argument, stating that the Non-discrimination Policy did not single out religious beliefs, but rather was neutral and of general applicability. The Ninth Circuit affirmed, ruling that the “all-comers” condition on RSO recognition was reasonable and viewpoint neutral.
[A few definitions might be helpful here. When analyzing ‘freedom of speech’ cases under the First Amendment, the court will use “forum” analysis. The court will ask ‘What type of forum was the speech conducted in?’ The Supreme Court recognizes three different types of forums for non-government speech: “traditional public forum,” “limited public forum,” and “private forum.” Each forum defines the extent to which a person can exercise his or her freedom of speech. A “public forum” is a constitutional term that refers government-owned property that is open to public expression and assembly. This would include parks and sidewalks, and the like – traditional public and common areas. A “limited” public forum is one that is open for limited purposes and for limited expression. An example would be school property other than the classroom, school groups, college student groups. Hastings created “limited public forums” with its RSOs. Private forums are just that. An example is a classroom and even a mall. Individuals have their most robust rights of free speech in a traditional public forum and the least in a private forum. Restrictions on speech in a limited public forum are upheld constitutionally if they pass strict constitutional scrutiny. The Supreme Court has defined this type of scrutiny to mean that the limitations on speech and expression must be viewpoint-neutral and reasonable in light of the purpose of the forum.]
The Supreme Court granted certiorari (ie, agreed to hear the case). CLS initially challenged Hastings decision to deny recognition to the group under its Nondiscrimination policy (which was the official reason the school gave CLS). It argued that the policy targets only those groups that organize around religious beliefs or that disapprove of particular sexual behavior, and leave other associations free to limit membership to persons committed to the group’s ideology. It claimed that Hastings discriminated against the group, based on its viewpoint. Despite CLS’ claims and despite the fact that the “all-comers” policy was not introduced until later in the case, the majority of the Supreme Court chose not to address this issue of the Nondiscrimination policy and its discriminatory impact. Instead, they chose to address a more limited legal question: Regarding student activities at public universities, may a public law school condition its official recognition of a student group, and hence the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students (ie, “all-comer” policy)?
The opinion of the Court was delivered by Justice Ruth Bader Ginsburg, the notorious liberal member who came from the ACLU (where she was the chief litigator of the ACLU's women's rights project). It was no surprise that the other liberal members of the Court – Stevens, Kennedy, Breyer, and Obama’s pick, Sotomayor, joined in the opinion. Justice Samuel Alito filed a very lengthy dissenting opinion and was heartily joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia.
The majority considered only whether Hastings’ conditioning access to a student-organization forum on compliance with an “all-comers” policy violates the Constitution. Again the case would turn on forum analysis and the proper guidelines for permissible speech in that forum. As the Court stated: “"Our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa tion rights." Rather than use Constitutional analysis to determine if the policy discriminated and burdened religious expression as it was applied to CLS, the Court applied a simple facial analysis of the policy. The Court asked if the policy, “on its face,” was “viewpoint neutral and reasonable.” And the majority of the Court concluded that it was. In support of this viewpoint, the majority noted that, “Hastings requires that RSOs allow any student to participate, regardless of his or her status or beliefs. For example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs… ”
The majority relied on several earlier cases in reaching its decision, among them being the Rosenberger v. University of Virginia (1995) and the Roberts v. United States Jaycees (1984) cases. In Rosenberger, a University of Virginia student, Ronald Rosenberger asked the University for almost $6,000 from a student activities fund to subsidize the publishing costs of their publication entitled “Wide Awake: A Christian Perspective at the University of Virginia.” The University refused to provide funding solely because University guidelines prohibit publications which "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." The legal question before the Court was this: Did the University of Virginia violate the First Amendment rights of Rosenberger and his Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines?
The Court, in a divided 5-4 opinion (along conservative/liberal lines), held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. In other words, a university generally may not withhold benefits from student groups because of their religious outlook. As the Court wrote: “Once it has opened a limited public forum, the State must respect the lawful boundaries it has itself set…. It may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of viewpoint.” (Rosenberger, pg. 829). The Court continued by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. In fact, in a series of past decisions, the Court has shown the same willingness to demand that religious groups not be discriminated against based on the content (viewpoint) of their speech.
In Roberts, membership in the United States Jaycees, according to its bylaws, was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office. Two chapters of the Jaycees in Minnesota, contrary to the bylaws, admitted women as full members. When the national organization revoked the chapters' licenses, they filed a discrimination claim under a Minnesota anti-discrimination law. The national organization brought a lawsuit against Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for the enforcement of the anti-discrimination law. The question before the Court was this: Did Minnesota's enforcement of the anti-discrimination law violate the Jaycees' right to free association under the First Amendment?
In a unanimous decision, the Supreme Court held that the Jaycees chapters lacked "the distinctive characteristics that might afford Constitutional protection to its decision to exclude women." The Court reasoned that making women full members not impose any serious burdens on the male members' freedom of expression. Furthermore, it reasoned that Minnesota has a compelling interest in eradicating discrimination against women which justified its enforcement of the state anti-discrimination law. The Court found that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint. Personally, I was surprised there was no mention of the First Amendment right of association.
It seems to me that the Supreme Court got it right in Rosenberger, although it is extremely troubling that it was only by a narrow 5-4 majority. Only a slim majority of the Court recognized the right of students to express their religious views, just as other students enjoy their rights to bash the Bible, endorse homosexuality, and extol the great virtues of living a consequence-free lifestyle and speaking their poisoned minds. In Roberts, the Court clearly imposed their opinions about whether women would burden the memberships’ (all-male up to that point) freedom of expression. Who in their right minds would conclude that adding women to the mix wouldn’t necessarily chill dialogue and expression? Try adding women to a man’s bachelor party. Try adding girls to the Boy Scouts. Having females present at an all-male membership club absolutely burdens their association and burdens the conduct that teaches them to be males and enjoy male camaraderie in a healthy way. So, in light of these two decisions, I believe the Supreme Court took the timid way out in the Hastings case. The Court failed to stand up for the rights of like-minded individuals, united by a similarity of viewpoint and outlook, and assembled for lawful expression and for a lawful purpose to put their speech out into the mainstream of ideas. Despite what our liberal courts and our government tries to force down our throats, I don’t believe anyone should be forced to mingle with others they fundamentally do not agree with or do not share a sufficient degree of commonality with. It stifles expression and speech. It inhibits the free expression of one’s personality. That goes for groups who form for gender related purposes, it goes for groups who form for alternative sexual preference purposes, and it should go for groups who form to naturally share in the delight and joy that comes from sharing in the same religious outlook for life and for conduct. In my opinion, the fundamental right of assembly and expressive assembly have not been respected nearly enough. The Right of Assembly, protected by the First Amendment to the United States Constitution, is the fundamental right to gather or associate with others for any purpose that would be lawful if pursued individually.
But that aside, I believe in this most current case, Hastings, it is the opinion of the dissenting Justices which makes the better argument. Justice Samuel Alito criticized the majority for focusing on the ‘all-comers’ policy. By doing so, he said that it freed the Court from the more difficult task of defending the Constitutionality of the policy that Hastings actually, and repeatedly, invoked when it denied registration (i.e., the school’s written Non-discrimination Policy). Justice Alito (joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia) began the dissent as follows: ”The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ (Schwimmer),). Today’s decision rests on a very different principle: No freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning. The Hastings College of the Law, a state institution, permits student organizations to register with the law school and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society. CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights. Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered organizations must admit any student who wishes to join. Deferring broadly to the law school’s judgment about the permissible limits of student debate, the Court concludes this “accept-all-comers” policy is both viewpoint-neutral and consistent with Hastings’ pro-claimed policy of fostering a diversity of viewpoints among registered student groups.”
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On June 28th, the Supreme Court handed down yet another disappointing and discouraging decision regarding religious expression and association in this country. It seems that the Court with the responsibility to preserve the intention and integrity of our Constitution and to see that it is faithfully executed and respected, has turned its back on the one group that has been needing its advocacy the most…. Christian religious groups. In its recent decision touching on religious rights, in the case Christian Legal Society Chapter of the Univ. of Calif., Hastings College of Law v. Martinez, the Supreme Court upheld a California law school’s denial of recognition to a Christian student group by a narrow and disappointing 5-4 decision. The American Center for Law and Justice (ACLJ) and the Alliance Defense Fund, both focusing on Constitutional law and in particular, First Amendment Rights, publicly stated that they are "extremely disappointed" in the decision. And Justice Samuel Alito, who wrote a scathing dissent, stated that this decision represents “a serious setback for freedom of expression in this country.”
The facts of this case are as follows: Hastings College of the Law, a school within the University of California public-school system, extends official recognition to student groups through its “Registered Student Organization” (RSO) program. Several substantial benefits are associated with this school recognition status, such as funding, access to facilities and channels of school communication (including school bulletin boards and school email), and Hastings name and logo. In exchange for recognition, however, RSOs must abide by certain conditions, including mandatory compliance with the school’s Nondiscrimination Policy (which tracks state law barring discrimination on a number of bases, including religion and sexual orientation) and its “all comers” policy (that is, RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of his or her status or beliefs). At the beginning of the 2004–2005 academic year, the leaders of an existing Christian RSO formed the Christian Legal Society (CLS) by affiliating with a national Christian association that charters student chapters at law schools throughout the country. These chapters must adopt bylaws that, among other things, require members and officers to sign a “Statement of Faith” and to conduct their lives in accordance with prescribed principles. Among those tenets is the belief that sexual activity should occur only between a man and a woman and should not occur outside of marriage. CLS interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct” or holds religious convictions different from those outlined in the Statement of Faith. Furthermore, CLS’s religious beliefs prevent non-Christians from exercising control over the group by becoming voting members or serving in leadership positions. When CLS applied for registration in 2004, Judy Hansen Chapman, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, a written policy designed to provide equal access for all students to college affiliated and supported activities and which forbids recognized groups from discriminating on a number of factors. That policy provides in pertinent part that “the University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”
If you have read this case, you will understand what I am about to try to explain. Otherwise, if this review is the first you’ve read on this case, you’ll be struck by the confusion that this case presents. As I’ve outlined in the previous paragraph, there are two policies that Hastings uses with respect to its registered student organizations: The Nondiscrimination policy and the “all-comers” policy. The CLS was not aware of the second policy. In fact, in the correspondence from the school denying recognition, the only reason communicated to CLS was that its bylaws violated the Nondiscrimination policy. When a student representative of the CLS approached school officials to seek $250 in travel funds so a chapter officer could attend a national conference of the Society, officials stalled the request, concluding that the chapter’s new by-laws violated Hastings’ Nondiscrimination policy. A few days later, the chapter met with Ms. Chapman and again the group was told that its bylaws violated the school’s Nondiscrimination policy. The group was advised that they would need to revise their bylaws and make them more compliant if they wanted recognition. After the chapter refused to alter its by-laws to conform to the school policy, official recognition was denied, and the requested travel funds were withheld, which led the chapter to sue in federal District Court. (Martinez represents UC Hastings, the party being sued). The CLS brought suit on the basis of religious discrimination, with respect to the school’s Nondiscrimination policy. As far as the record reflects, Ms. Chapman made no mention of an “accept-all-applicants” policy. The confusion in the case comes from this policy, which only made its entrance in the case after the suit was initiated. It was not until July 2005, when the then-Dean of the Law school, Dean Kane, was deposed (over a year after the initiation of the suit), that the “all-comers policy” was introduced as a policy (together with the Nondiscrimination policy) that the school uses to condition recognition of an RSO. Yet it is this policy that turned out to be the issue upon which the Supreme Court decided to focus on the case.
It was not until 2005 that Hastings claimed it rejected CLS’s application for RSO status because that group’s bylaws did not comply with Hastings’ open-access, “all-comers” policy. That claim contradicted the record. According to the Dean, Hastings rejected the application because CLS excluded students for membership or leadership positions based on religion and sexual orientation, in violation of the “all-comers” policy. Yet according to the official record, the reason given for denial of recognition was violation of the Nondiscrimination policy – the group’s bylaws were in contradiction to the spirit of the policy. In other words, Hastings denied official recognition to the Christian Legal Society after CLS said it could not abide by the school’s non-discrimination policy since that policy forbids student groups from discriminating on the basis of, among other things, "religion." It is important to distinguish between these two policies when reviewing the case and the decision of the majority of the Court.
CLS filed this suit for injunctive and declaratory relief under 42 U. S. C. §1983 (Federal statue providing a civil action for deprivation of rights, originally enacted as part of the Civil Rights legislation of 1871; also originally known as the “Ku Klux Klan Act”), alleging that Hastings’ refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. On cross-motions for summary judgment, the District Court ruled for Hastings. The District Court held that CLS presented no genuine issue of controversy and so there was no need to move the case forward; hence, judgment was granted to Hastings. The court held that the “all-comers” policy, as a condition to being recognized as an RSO, which is defined legally as a “limited public forum” for speech and expression purposes, was both reasonable and viewpoint neutral (ie, the language of the policy didn’t show any obvious discrimination), and therefore did not violate CLS’s right to free speech. Nor, in the court’s opinion, did Hastings impermissibly burden CLS’s right to expressive association: Hastings merely placed conditions on the use of school facilities and funds. The court also rejected CLS’s free exercise argument, stating that the Non-discrimination Policy did not single out religious beliefs, but rather was neutral and of general applicability. The Ninth Circuit affirmed, ruling that the “all-comers” condition on RSO recognition was reasonable and viewpoint neutral.
[A few definitions might be helpful here. When analyzing ‘freedom of speech’ cases under the First Amendment, the court will use “forum” analysis. The court will ask ‘What type of forum was the speech conducted in?’ The Supreme Court recognizes three different types of forums for non-government speech: “traditional public forum,” “limited public forum,” and “private forum.” Each forum defines the extent to which a person can exercise his or her freedom of speech. A “public forum” is a constitutional term that refers government-owned property that is open to public expression and assembly. This would include parks and sidewalks, and the like – traditional public and common areas. A “limited” public forum is one that is open for limited purposes and for limited expression. An example would be school property other than the classroom, school groups, college student groups. Hastings created “limited public forums” with its RSOs. Private forums are just that. An example is a classroom and even a mall. Individuals have their most robust rights of free speech in a traditional public forum and the least in a private forum. Restrictions on speech in a limited public forum are upheld constitutionally if they pass strict constitutional scrutiny. The Supreme Court has defined this type of scrutiny to mean that the limitations on speech and expression must be viewpoint-neutral and reasonable in light of the purpose of the forum.]
The Supreme Court granted certiorari (ie, agreed to hear the case). CLS initially challenged Hastings decision to deny recognition to the group under its Nondiscrimination policy (which was the official reason the school gave CLS). It argued that the policy targets only those groups that organize around religious beliefs or that disapprove of particular sexual behavior, and leave other associations free to limit membership to persons committed to the group’s ideology. It claimed that Hastings discriminated against the group, based on its viewpoint. Despite CLS’ claims and despite the fact that the “all-comers” policy was not introduced until later in the case, the majority of the Supreme Court chose not to address this issue of the Nondiscrimination policy and its discriminatory impact. Instead, they chose to address a more limited legal question: Regarding student activities at public universities, may a public law school condition its official recognition of a student group, and hence the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students (ie, “all-comer” policy)?
The opinion of the Court was delivered by Justice Ruth Bader Ginsburg, the notorious liberal member who came from the ACLU (where she was the chief litigator of the ACLU's women's rights project). It was no surprise that the other liberal members of the Court – Stevens, Kennedy, Breyer, and Obama’s pick, Sotomayor, joined in the opinion. Justice Samuel Alito filed a very lengthy dissenting opinion and was heartily joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia.
The majority considered only whether Hastings’ conditioning access to a student-organization forum on compliance with an “all-comers” policy violates the Constitution. Again the case would turn on forum analysis and the proper guidelines for permissible speech in that forum. As the Court stated: “"Our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa tion rights." Rather than use Constitutional analysis to determine if the policy discriminated and burdened religious expression as it was applied to CLS, the Court applied a simple facial analysis of the policy. The Court asked if the policy, “on its face,” was “viewpoint neutral and reasonable.” And the majority of the Court concluded that it was. In support of this viewpoint, the majority noted that, “Hastings requires that RSOs allow any student to participate, regardless of his or her status or beliefs. For example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs… ”
The majority relied on several earlier cases in reaching its decision, among them being the Rosenberger v. University of Virginia (1995) and the Roberts v. United States Jaycees (1984) cases. In Rosenberger, a University of Virginia student, Ronald Rosenberger asked the University for almost $6,000 from a student activities fund to subsidize the publishing costs of their publication entitled “Wide Awake: A Christian Perspective at the University of Virginia.” The University refused to provide funding solely because University guidelines prohibit publications which "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." The legal question before the Court was this: Did the University of Virginia violate the First Amendment rights of Rosenberger and his Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines?
The Court, in a divided 5-4 opinion (along conservative/liberal lines), held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. In other words, a university generally may not withhold benefits from student groups because of their religious outlook. As the Court wrote: “Once it has opened a limited public forum, the State must respect the lawful boundaries it has itself set…. It may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of viewpoint.” (Rosenberger, pg. 829). The Court continued by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. In fact, in a series of past decisions, the Court has shown the same willingness to demand that religious groups not be discriminated against based on the content (viewpoint) of their speech.
In Roberts, membership in the United States Jaycees, according to its bylaws, was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office. Two chapters of the Jaycees in Minnesota, contrary to the bylaws, admitted women as full members. When the national organization revoked the chapters' licenses, they filed a discrimination claim under a Minnesota anti-discrimination law. The national organization brought a lawsuit against Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for the enforcement of the anti-discrimination law. The question before the Court was this: Did Minnesota's enforcement of the anti-discrimination law violate the Jaycees' right to free association under the First Amendment?
In a unanimous decision, the Supreme Court held that the Jaycees chapters lacked "the distinctive characteristics that might afford Constitutional protection to its decision to exclude women." The Court reasoned that making women full members not impose any serious burdens on the male members' freedom of expression. Furthermore, it reasoned that Minnesota has a compelling interest in eradicating discrimination against women which justified its enforcement of the state anti-discrimination law. The Court found that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint. Personally, I was surprised there was no mention of the First Amendment right of association.
It seems to me that the Supreme Court got it right in Rosenberger, although it is extremely troubling that it was only by a narrow 5-4 majority. Only a slim majority of the Court recognized the right of students to express their religious views, just as other students enjoy their rights to bash the Bible, endorse homosexuality, and extol the great virtues of living a consequence-free lifestyle and speaking their poisoned minds. In Roberts, the Court clearly imposed their opinions about whether women would burden the memberships’ (all-male up to that point) freedom of expression. Who in their right minds would conclude that adding women to the mix wouldn’t necessarily chill dialogue and expression? Try adding women to a man’s bachelor party. Try adding girls to the Boy Scouts. Having females present at an all-male membership club absolutely burdens their association and burdens the conduct that teaches them to be males and enjoy male camaraderie in a healthy way. So, in light of these two decisions, I believe the Supreme Court took the timid way out in the Hastings case. The Court failed to stand up for the rights of like-minded individuals, united by a similarity of viewpoint and outlook, and assembled for lawful expression and for a lawful purpose to put their speech out into the mainstream of ideas. Despite what our liberal courts and our government tries to force down our throats, I don’t believe anyone should be forced to mingle with others they fundamentally do not agree with or do not share a sufficient degree of commonality with. It stifles expression and speech. It inhibits the free expression of one’s personality. That goes for groups who form for gender related purposes, it goes for groups who form for alternative sexual preference purposes, and it should go for groups who form to naturally share in the delight and joy that comes from sharing in the same religious outlook for life and for conduct. In my opinion, the fundamental right of assembly and expressive assembly have not been respected nearly enough. The Right of Assembly, protected by the First Amendment to the United States Constitution, is the fundamental right to gather or associate with others for any purpose that would be lawful if pursued individually.
But that aside, I believe in this most current case, Hastings, it is the opinion of the dissenting Justices which makes the better argument. Justice Samuel Alito criticized the majority for focusing on the ‘all-comers’ policy. By doing so, he said that it freed the Court from the more difficult task of defending the Constitutionality of the policy that Hastings actually, and repeatedly, invoked when it denied registration (i.e., the school’s written Non-discrimination Policy). Justice Alito (joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia) began the dissent as follows: ”The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ (Schwimmer),). Today’s decision rests on a very different principle: No freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning. The Hastings College of the Law, a state institution, permits student organizations to register with the law school and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society. CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights. Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered organizations must admit any student who wishes to join. Deferring broadly to the law school’s judgment about the permissible limits of student debate, the Court concludes this “accept-all-comers” policy is both viewpoint-neutral and consistent with Hastings’ pro-claimed policy of fostering a diversity of viewpoints among registered student groups.”
This article provided courtesy of our sister site: Beaufort County Now
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