Court Ruling Will Supress Speech

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Court Ruling Will Suppress Speech

Special Report - June 28, 2010
In a decision that could threaten the First Amendment rights of Christian student groups at universities nationwide, the U.S. Supreme Court has ruled that a California law school has the right to deny official recognition to a student chapter of the Christian Legal Society (CLS) because the group’s membership policy prohibits it from accepting students who do not adhere to its religious beliefs, including students engaged in homosexuality. The high court’s 5 to 4 decision, which was issued June 28 and written by Justice Ruth Bader Ginsburg, found that the University of California Hastings College of Law’s requirement that officially-recognized student groups comply with the school’s nondiscrimination policy—which prohibits discrimination on the basis of a number of categories, including religion and sexual orientation—“is a reasonable, viewpoint neutral condition on access to the student organization forum.” The San Francisco chapter of the CLS was denied official recognition by the Hastings School of Law because it requires student officers and voting members to sign a “Statement of Faith” and to adhere to a specific lifestyle, which includes not engaging in homosexual conduct or sex outside of marriage. The CLS student chapter was represented in the lawsuit, CLS v. Martinez—which began in 2004—by attorneys with the national CLS and the Alliance Defense Fund (ADF).

In the majority opinion that agreed with lower court rulings in the case, Justice Ginsburg rejected the CLS’s argument that the Hastings policy violated the group’s First Amendment rights. “In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” Ginsburg wrote. “CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.” The Supreme Court did not consider CLS’ argument that Hastings “selectively” enforces its student group policy, and ruled that the 9th Circuit could consider this issue on appeal.

Justice Samuel Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas in his dissenting opinion, which described the court’s handling of the case as “deeply disappointing.” Justice Alito noted that, “The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination.” Alito also warned, “Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions ‘do not wish to . . . lend their name[s].’”

In a joint statement, ADF and CLS noted that the Supreme Court’s decision in CLS v. Martinez only applies to the specific Hastings policy and not to all university nondiscrimination policies nationwide. However, ADF Senior Legal Counsel Gregory S. Baylor noted that the decision could still have a negative impact on student groups on other university campuses. “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,” said Baylor. “Long-term, the decision puts other student groups across the country at risk, and we will continue to fight for their constitutional rights. We agree with Justice Alito in his dissent that the court should have rejected this as absurd.”