CLS v. Martinez: A Disappointing – But Limited – Decision

In lieu of the usual Morning Reports today, I am going to be collecting responses to the CLS v. Martinez case, for which the Supreme Court just issued its decision (you can download the decision at their website).  As regular readers of Cross and Culture and the Evangelical Portal at Patheos will remember, we interviewed Michael McConnell, the former federal judge (and potential Supreme Court nominee) who argued the case before the court.

The different sides will construe the issue at stake in this case differently.  If you ask the Hastings side, it has to do with a Christian group which is asking for special treatment: to be exempted from an “all comers” policy which requires all student groups to be open to all students and yet still receive student status and student funding.  If you ask the CLS side, the issue is whether the state and its organs can withhold certain benefits and subsidies (such as the right to be recognized as a student group, with the access that grants) to those groups which require their members to affirm the fundamental purposes of the group.  Can a state institution exclude a Christian student group because it requires its voting membership to be Christian?

McConnell said this:

“The essential theory underlying Hastings’ position is that allowing a group to meet on campus amounts to a benefit or a subsidy that the university is entitled to grant or withhold on the basis of its own approval or disapproval of the group’s practices. If that is so, if being able to participate on an equal basis with other groups in the common resources of civil life is a benefit or subsidy that the government controls in this way, then there is essentially no more separation between church and state. The government will be able to exercise a kind of power over religious organizations that it has never before exercised in America.”

In other words, if the state can withhold the common resources of our society from Christian groups that “discriminate” because they require their membership or leadership to be Christian, then the door is opened for state manipulation of the church on a massive scale.  Can groups form meaningful associations around shared beliefs, and can those groups be discriminated against by the state?  As McConnell explained:

“The case would be enormously important in a bad way if Hastings were to prevail. For CLS to prevail would simply be to shore up Constitutional protections that the court has been providing for the last thirty or forty years. My guess is that if CLS wins, all of the folks on the other side of the case will say, “Well, of course. This is a very small case.” Yet if Hastings wins, and especially if they win on the theory that the government can withhold “benefits” to any group it disapproves of, the world will be a very different place the day after.”

Well, the decision has been issued, and Hastings won – but, arguably, it is a very narrow win.  In a 5-4 ruling, with the liberals and Kennedy on one side, and Alito, Roberts, Scalia and Thomas on the other side, the court decided that the “all comers” policy is reasonable, given the purposes of the student groups and the totality of circumstances, and not an unlawful abridgement of First Amendment rights.

I will be posting responses here throughout the day, and weaving them together into an article later.  For now I want to note this first-blush response from David French, the Senior Counsel for the Alliance Defense Fund, which argued the case alongside the Christian Legal Society.  French writes:

“Interestingly, rather than resolving the free association issue, the Court seems to have very narrowly decided the case — dealing with an “all-comers policy” that is virtually unique to Hastings.  It appears that the Court has left open the core issue that has bedeviled student groups nationwide, the conflict between free association and nondiscrimination policies that prohibit, among other things, discrimination on the basis of religion and sexual orientation.

“This is pure first blush assessment; more to come as I read through the opinion.  Bottom line: a disappointing decision but one that does not come close to settling core constitutional issues on campus.  In fact, it doesn’t even decide this case since it’s remanded for further proceedings.“

More to come, as I make sense of the ruling and gather responses from those involved in the case.  Stay tuned.