It's OK to Stop People From Discriminating: An Analysis of CLS v. Martinez

You might be wondering why it is necessary for the highest court in the land to have to hand that seemingly obvious message down from the bench in one of the last four rulings before the Court adjourns for April. Yet that's exactly what they were forced to do in Christian Legal Society v. Martinez, brought before the Court by the Hastings College of Law chapter of the CLS, who were less than pleased that they couldn't get school funds and resources if they banned gays and non-Christians from their group.

Basically, the facts of the case are this.  The law school of Hastings College has a policy that all of its student groups must accept anyone who wishes to join, or lose official recognition, money from the school's activities fund, school letterhead, and other such perks. The Christian Legal Society, which requires members to sign a code that affirms, among other things, the belief in god as savior and the rejection of any and all aberrant sexual conduct, was denied recognition and promptly sued.  They alleged that not only were they being unfairly targeted because of their religion, but that the whole policy was unconstitutional.  The Court, divided 5-4 along the familiar lines of major cases, ruled in favor of the law school. 

There was a Constitutional issue in the case, I think, flitting around the role public schools play in promoting religion and/or religious tolerance.  In fact, that's why I originally followed/decided to write about it.  But I was hard pressed to find it in the actual case.  I read all the opinions (and undertaking requiring multiple hours and countless repetitions of the Battlestar Galactica soundtracks) but couldn't quite bring myself to do more than skim the oral argument transcripts after reading through SCOTUSWiki's summaries.  Ruth Bader Ginsburg's majority opinion reads more like a lecture to the lawyers on the actual meaning of a "stipulation", specifically, the joint stipulation that Hastings' policy was "all-comers" and applied to everyone neutrally.  There was a certain amount of civic-mindedness driving the Court as well: Anthony Kennedy wrote that “A vibrant dialogue is not possible if students wall themselves off from opposing points of view" — which might be read, in less-Courtly terms, "Get over it."  Samuel Alito's dissent took a different view of the record (including the stipulation) and used the fact that only the CLS had been banned from recognition under the policy to argue that the policy unfairly singled out because of their beliefs.

Actually, no one, the Court included and especially, seems to be quite clear on what the policy — and maybe even the argument — was.  There were, as I have stated before, two issues: The policy, and the way the CLS was treated under that policy.  In the joint stipulation, it was stated that the policy was an all-comers policy that was applied neutrally and had nothing to do with religious beliefs.  Apparently just realizing that that was rather damaging to their case, the CLS lawyers tried to backtrack, only to be met by an implacable stone wall otherwise known as Ruth Bader Ginsburg who declared that the two sides had told the District judge "Here are the facts, and the facts were not qualified at all".  It was even suggested by Gregory Garre, arguing for the College, that perhaps the case should be dismissed as a mistake.

The weird part is that there is a constitutional issue here: how far colleges can go in supporting/suppressing religious groups, and that was rarely touched upon.  Actually, no.  Scratch that.  That's what the CLS lawyers were arguing.  This case has nothing to do with religion.  It has to do with a policy that is designed to promote fairness and inclusiveness.  It has to do with an appeal that merited a bare 2 sentences from the 9th Circuit because the core issue had been decided in a stipulation: If Hastings' policy was inherently unfair, and specifically unfairly applied to religious groups, then how could lawyers from both sides have written that stipulation?

What the CLS seemed unwilling to realize in this case is that Hastings' policy is not an attack on them and their religious beliefs.  It is not a restriction on their rights, it is an expansion of the rights of others.  None of the other organizations at Hastings (including, presumably, other religious organizations) had any problem adhering to the policy.  In fact, the CLS itself had held to the policy until it affiliated with a national organization and adopted the new, stricter, more discriminatory rules.  Even without this ruling, the group would not be banned, or even kicked off campus.  The verdict is a victory, in a way, because it affirms the rights of schools to make and enforce their own discrimination policies, including those which bar all forms of discrimination.  But the fact that this came before the Court, in a case where there was no circuit conflict and a barely-there constitutional issue, is a bit baffling.  As Lyle Denniston wrote for SCOTUSBlog, "When the Supreme Court is confronting a major constitutional decision, but Justice Anthony M. Kennedy begins the questioning by wondering exactly what case is before the Court, the chances that a big decision will emerge drop perceptibly at the very outset. And when Kennedy is followed by several colleagues voicing deep doubts about what the facts are, the case begins to look very much like a waste of judicial time."  Which it was.