Reflections on the CLS Case, Part 1

I am going to share some reflections today on the CLS v. Martinez case.  Yesterday I posted first responses as they were received.  Today, now that the dust has settled a little more, there is time for sober reflection.  In this first post, I am going to give the background, so that anyone who is unfamiliar with the case can catch up.

In 2004, the Hastings School of Law (which is affiliated with U. C. Berkeley and the California higher education system, and thus an extension of the state) decided to reject the official student group status of the Christian Legal Society (a very well established organization with chapters at scores of law schools), on the grounds that the CLS required its voting members to affirm a statement of faith.  Anyone could attend meetings, but voting members had to be Christians (and the statement of faith included a belief that homosexual acts are against God’s will).  This, Hastings alleged, is discriminatory, and therefore the CLS would either have to admit all students regardless of their religious status or they would lose their official student group status along with the access that gave to funds and facilities.

Whether this policy was already in place, or was developed after the legislation began, is somewhat up for grabs – but Hastings put forward an “all comers” policy that all student groups must accept all students to be members and leaders.  The Dean (Dean Martinez, thus it’s called CLS v. Martinez) was quite explicit that this meant, yes, that white supremacists would have to be allowed to be voting members and leaders of a black student society, or anti-semites or a Jewish student society, etc.

Whether this is a victory for anti-discrimination efforts, of course, or a strike against the right of free expressive association, depends on whom you ask.

The ruling was rather limited; it said that the all-comers policy is constitutionally permissible, but we know of no other university that employs an all-comers policy.  It was also remanded back to the circuit court to determine whether Hastings applied the law selectively against CLS, while leaving other students groups (like La Raza, or Muslim student groups) to discriminate.

But the questions are (1) how broadly will this be construed by other universities that want to get rid of student groups they don’t like, (2) will other universities start adopting all-comers policies, and (3) does this represent a judicial drift toward the view that the state can grant or withdraw common rights and resources from groups ir does or does not approve of?

You can find more at the SCOTUS blog Wiki, and a summation of the argument Justice Ginsburg presented here.  Later today, I will post some reflections on the interviews and the issues at stake.  

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