CLS v Martinez: Michael McConnell on the Dangers of this Ruling

Today I have been posting a series of blog entries on the CLS v Martinez case.  Scroll down to see more of the context and early responses.  I just got off the phone with Michael McConnell, who argued the case before the Supreme Court.

The CLS/ADF side has emphasized that this is a very limited ruling, and part of the case is thrown back to the Circuit Court to determine whether the all comers policy, which the Supremes decided is not a rejection of the First Amendment, was applied in a discriminatory way.  Yet this is certainly not the ruling that CLS and its supporters wanted to see.  McConnell said:

“The majority opinion does reject one of our arguments, which is that the all comers policy, even if it were applied in a non-discriminatory basis, is unreasonable in light of the purpose of the forum.  I regret that they rejected that.  That is a defeat.  But that was only one of a number of arrows in our quiver.”

Moreover, the potential consequences are extensive:

“A lot of the danger in decisions of this sort is that in real world they’re often interpreted as much broader than they actually are on the pages of the US report.  This is one of the sad things about the decision, that I really do think that this is going to unleash a lot of anti-free speech efforts on campus, and lead to heightened tensions and increased litigation.”