Another 5-4 close one. Who needs the World Cup when you got Supreme Court justices brawling it out over the Constitution? (OK, I do, also). Anyway, in another contentious split decision, the left side gets a rare win as “Swing Man” Kennedy joins Judge Ginsburg’s opinion in Christian Legal Society v. Martinez, decided yesterday. Quick synopsis: Hastings School of Law is part of the University of California’s splendid public university system. Hastings has a policy regarding its school organizations that it calls “All comers.” It means that if the club wants to get the benefits of official recognition, it must accept any Hastings student that wants to join. A club that wants to discriminate can do so and still advertise its meetings and events but it won’t receive the benefits of official acceptance. Official recognition brings the right to use the Hastings name and logo, access to an e-mail address with a link to the law school’s network, office space and meeting rooms, and small grants from student activity fees and university funds.
So along comes a group that calls itself the Christian Legal Society; a Christian legal group called Hastings Christian Fellowship had been part of the campus for over 10 years, but when it decided to join with the national organization CLS, it had to adopt the national by-laws which excludes gays and non-believers from membership. Once the new by-laws were submitted to Hastings, the school dropped all the endorsement benefits. Rather than turn the other cheek, CLS sued.
CLS claimed that the policy violated the group’s First Amendment rights to freedom of association and speech. Ginsburg and the others who signed with her disagreed saying the policy is content-neutral and that, if anything, CLS sought to make itself different from the other clubs and sought a greater right than others. Ginsburg also pointed out that the school still allowed it to advertise its emetigns on billboards and to use classrooms so that the restriction was very limted. This is especially so, she wrote, because social media allows anyone to open up a website and use any number of ISP for email servers. This is interesting because it is another instance of social media’s impact on a decision. If the university’s benefits were the only way to communicate to all students, it may have been a different result. Also of interest was the citation to many materials that are only available on the web. But I digress.
Justice Stevens wrote a brief concurrence that addressed that this decision was reached because the State was not acting as the State-at-large but rather as the owner of property and that means that while these clubs are public forums they are limited forums that the property owner can control more than if the State was acting Statewide.
Justice Kennedy wrote his own concurring opinion just to highlight that he voted this way primarily because the policy was not based on content it was totally neutral and that if it was in anyway based on content he would have voted the other way.
This decision seemed pretty clear cut to me – publicly funded univesity, neutral, exclude no one-prefer no one policy, clubs could still meet and use classrooms, what’s the likelihood a non-christian would want to join anyway? Where’s the beef, right?
So I was curious to see what the Four Horsemen of the Apocalypse would have to say about it. Writing for the quartet was Justice Alito. Alito’s dissent rails against Hastings for changing its position about its policy throughout the litigation. Initially, they stated that clubs could not discriminate against students for constitutionally protected reasons; then that some restrictions on conduct could be permitted; and finally in preparation for the appellate argument both sides entered into a stipulation that when it comes to these clubs, Hastings had an “all-comers” policy.
He argues that except for this stipulation there was no real proof of the all comers policy. He also felt that since this was the only club in 20 years of the policy that had been disallowed that it was the content of the club’s message that the school did not like. He said that the Court has never said that “a little viewpoint discrimination” is OK.
But a stipulation is a stipulation. Few experienced trial lawyers would have accepted this stipulation on the central issue of the case. This major error on CLS’ lawyers’ part was costly. For Alito to try and overlook it now does not fly. Also, that this was the only club to ever be denied shows that its new by-laws was the reason. The school has pro-life clubs, pro-choice clubs, Democratic, Republican clubs, etc etc. All this club had to do was add a sentence that the other clubs had and which was approved by the school : membership can be denied to students who “exhibit a consistent disregard and lack of respect for the objective of the organization.”
Call me a conspiracy theorist but it seems that this group wanted this issue to get the Supremes rather than make this simple modification to its by-laws. They perhaps counted on Kennedy to swing to their corner but the school’s neutral content policy (and a bad stipulation by their counsel) won the day.
This ends the Supreme Court’s term until the first Monday in October. It ended with a contentious few 5-4 decisions from one of the most divided and divisive courts in American history. It marks the end of an era with the retirement of Justice Stevens. What will Elena Kagan’s appointment do to this chemistry? Probably not much. It will still be important to get Justice Kennedy’s vote though I think I see a few more 6-3 rulings coming our way.