In my earlier post I framed the issues behind CLS v. Martinez and noted the first-blush response of David French, senior legal counsel for the Alliance Defense Fund, which argued the case alongside the Christian Legal Society. The ADF just issued their press release on the case. Granted, they have an interest in arguing that this does not decide the issue of free religious association on college campuses without discrimination. Still, they may well be right in their interpretation of the case. They say:
“The U.S. Supreme Court ruled 5–4 Monday to uphold an unusual university policy that forces student groups to allow outsiders who disagree with their beliefs to become leaders and voting members. The court confined its opinion to the unique policy and did not address whether nondiscrimination policies in general, which are typical on public university campuses, may require this. The court concluded that public universities may override a religious student group’s right to determine its leadership only if it denies that right to all student groups.”
In other words, ADF interprets this ruling as a very narrow one – indeed, so narrow that it does not presently apply at any other college campus. The question, it seems to me, is whether other college campuses may follow suit and tailor their policies in the image of the Hastings “all comers” policy. If they did, Christian groups on campuses will be in a very tenuous position.Clearly, then, the battle for how the ruling is interpretation will be over (1) whether it is a broadly applicable ruling, or a very narrowly defined one; (2) whether other public universities can simply follow suit and use this as a means to de-legitimize religious student groups; and (3) over the remanding issue. One of the issues (if ADF attorney David French is to be believed – I have not finished reading through the decision myself) was remanded back to the lower court for further exploration.
But another of the ADF attorneys points to the potential for a broadly applicable ruling and its consequences:
“The conflict still exists. This decision doesn’t settle the core constitutional issue of whether nondiscrimination policies in general can force religious student groups to allow non-believers to lead their groups,” explained ADF Senior Legal Counsel Gregory S. Baylor. “Long-term, the decision puts other student groups across the country at risk, and we will continue to fight for their constitutional rights. The Hastings policy actually requires CLS to allow atheists to lead its Bible studies and the College Democrats to accept the election of Republican officers in order for the groups to be recognized on campus. We agree with Justice Alito in his dissent that the court should have rejected this as absurd.”
More to come.