Yesterday, the Supreme Court agreed to decide whether it’s unconstitutional for a state-run college to deny official recognition to a student religious group that limits its officers and voting members to those who accept its religious beliefs. The case is Christian Legal Society v. Martinez (08-1371), and it involves Hastings College of Law, in San Francisco.
There were several good reasons for the Court to grant cert. in this case. First, on the issue of whether a religious student group may draw its officers and voting members from among those who share its core religious commitments, the Ninth Circuit’s decision is squarely at odds with the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853, 863 (7th Cir. 2006). Walker rightly decided the expressive association claim before it in concluding that “[i]t would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.”
Second, the Ninth Circuit’s decision conflicts with the Second Circuit’s decision in Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 872-73 (2d Cir. 1996). Hsu upheld, under the federal Equal Access Act (which it characterized as “an analog to the First Amendment”), the right of a high school religious student group to require its officers to affirm its religious viewpoints.
Third, the Ninth Circuit’s ruling is diametrically opposed to that reached in two separate lines of Supreme Court precedent. As to the first, the Supreme Court has consistently protected an expressive association’s First Amendment right to deny leadership and membership to persons who might adversely affect the association’s ability to share its message. One need only look to Boy Scouts of America v. Dale, 530 U.S. 640 (2000) and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) for the Court’s protection of expressive association. Moreover, the Supreme Court has consistently required public universities to recognize so-called “disfavored” student organizations — including religious groups — under the First Amendment’s free speech and expressive association sprotections. See, for example, Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995) and Widmar v. Vincent, 454 U.S. 263 (1981). By requiring religious groups to open their leadership and voting membership to individuals of different beliefs, state-run schools could easily do an end-run around the Supreme Court’s important protection of religious groups’ access to public facilities (from which they have too often been excluded).
Writing about the case at The Volokh Conspiracy, Eugene Volokh notes that the Supreme Court’s decision in this case could be an important one on First Amendment law and government benefits more broadly, as its implications could extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes.
Copies of the cert. petition briefing, as well as the lower court briefs and pleadings, can be accessed at the Christian Legal Society’s website.
This post was written by Joshua Bolinger.
