In the Supreme Court battle between the Christian Legal Society and the University of California Hastings College of Law -- a potentially major First Amendment challenge on this term's docket -- both sides have added star legal talent to handle the likely April arguments.
Christian Legal Society has brought on board, as lead counsel, former federal appellate judge Michael McConnell, who is now director of the Constitutional Law Center at Stanford Law School. Hastings has added former Solicitor General Gregory Garre, chair of Latham & Watkins' Supreme Court and Appellate Practice Group. And the Hastings gay and lesbian student organization, Hastings Outlaw, has brought in Paul Smith, chair of the Appellate and Supreme Court Practice at Jenner & Block.
The high court case, Christian Legal Society v. Martinez, asks the justices whether a public university law school with a non-discrimination policy can refuse to fund a religious student group because the group requires its officers and voting members to agree with its core religious beliefs, thereby excluding gay and lesbian students.
"Mike will indeed be arguing the case," said Gregory Baylor, senior legal counsel at the Alliance Defense Fund, which represented the Christian Legal Society in the lower courts.
Before joining Stanford last year, McConnell was a judge on the 10th U.S. Circuit Court of Appeals. He is a nationally-known religion clause scholar and has argued 11 cases in the Supreme Court.
McConnell said he is working pro bono for CLS and the Stanford Supreme Court Litigation Clinic is not involved in the case.
Ethan Schulman, partner in the San Francisco office of Crowell & Moring, represented Hastings College of Law in the district court litigation and on appeal to the 9th Circuit.
Schulman said he has never argued in the Supreme Court. "I was hoping," he chuckled. "But at the end of the day, it's what's best for the client." And what was best was Garre, who will be working with another Latham high court veteran, Maureen Mahoney, added Schulman.
Garre, who has argued 27 Supreme Court cases, has served as solicitor general, principal deputy solicitor general and an assistant to the solicitor general.
Hastings Outlaw, the student group that intervened on the law school's side, has been represented by the National Center for Lesbian Rights in San Francisco.
Shannon Price Minter, the Center's legal director, said the Center asked Smith to help with the case. "We just wanted to ensure the student group has the very best representation," he said. "Now that we're at the Supreme Court, we wanted someone who regularly practices there and given his expertise in First Amendment issues, Paul seemed like a very logical choice. We don't anticipate seeking argument time. We want to make sure the briefs are first rate."
Last March, the 9th Circuit affirmed a district court ruling in favor of the law school. The three-judge panel, in an unsigned opinion, said, "Hastings imposes an open membership rule on all student groups -- all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable."
This article first appeared on The BLT: The Blog of Legal Times.
