Some have reported that the Christian Legal Society agreed to a stipulation that they were originally refused recognition on the basis of the unwritten all-comers policy. This is false. The CLS agreed in 2005 to a stipulation that Hastings had by then adopted an all-comers policy, and then throughout the litigation process Hastings and CLS battled over the constitutionality of both policies applied together (see stipulations 17 and 39-41). Thus the CLS objected not only to the all-comers policy but also the non-discrimination policy, prompting a confused retort from Justice Ginsburg in her opinion that CLS had agreed to a stipulation that the all-comers policy was the only relevant policy. The majority decision put forth by the Supreme Court addresses only the all-comers policy, because of this disagreement or confusion over how the case history should be read. Ginsburg even called it "unseemly" for the CLS to attack the non-discrimination policy, conveniently ignoring that Hastings itself had defended the constitutionality of both policies in the lower courts.
Yet the majority opinion leaves open the possibility that the all-comers policy, although constitutional in the abstract, may have been unconstitutional in application, if it were applied in a selective and discriminatory manner. The case is thus remanded to the Ninth Circuit Court to assess whether that is the case, and the CLS side is publicly optimistic that they can show precisely that.
I want to present three issues missing or misrepresented in popular media treatments of the case, and three reasons to be concerned that Justice Alito could be correct (as he wrote on behalf of the four dissenters) that this ruling represents "a serious setback for freedom of expression in this country."
First, contrary to the general impression conveyed by the media, the case has never been about money. While it is true that RSOs can apply for common funds that are pooled from student activities fees, the CLS chapter at Hastings had no reason to believe that a predominantly liberal student government would grant any significant amount of funds to a conservative Christian group. The cost-benefit analysis of pursuing a case all the way to the Supreme Court on behalf of a paltry amount of funds which are highly unlikely to be granted anyway makes the contention that this was about money absurd.
Thus, liberal constitutional law expert Marci Hamilton, in our recent interview, is evading the substance of the issue when she says that the case is "only about whether or not student groups are going to get funding." As a former member of similar student organizations, I can attest that funding was almost never a concern -- not because Christian students are wealthy but because they generally meet over water and pizza. Yet access to meeting spaces on campus, and the use of school-established means of communication, were highly significant. At many law schools, students facing the pressures of a legal education are far less likely to attend off-campus meetings, and the long-term consequences will be severe. David French, senior legal counsel for the Alliance Defense Fund, which argued the case alongside the Christian Legal Society, says that there have been "profound negative impacts on CLS as a result of de-recognition."
This was never about money. French goes on to say, "we're talking about inclusion in the community: the ability to meet on campus, to be an equal participant in the marketplace of ideas." Hastings determined "that you cannot be an equal participant" in that marketplace "unless you agree to toe the line" and put aside your religious qualms with non-Christians shaping the fate of a fellowship whose very purpose is the deepening of Christian faith. Hastings is placing "massive conditions on the exercise of the most basic constitutional rights." Essentially, for holding true to their religious beliefs, the Christian Legal Society was shunted out of the marketplace of ideas and made to open shop where fewer people would see their advertising and fewer could reach them. They were severely disadvantaged for believing what Christians have more or less always believed.
Second, philosophers like to talk about the definitions of terms, and one of the crucial underlying issues in the case, which is substantially addressed neither in Ginsburg's opinion nor in media accounts of the case, is what precisely is meant by a benefit or subsidy. Eugene Volokh articulates a "moderate conservative" standpoint in which all religious groups are free to exclude those who do not confess their faith -- but not to exclude them and expect benefits and subsidies from the state. This is not an uncompelling line of argument, but it elides the question -- not squarely addressed in the Ginsburg opinion, either -- of whether equal access to a public forum should be considered a benefit or subsidy.
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