The U.S. Supreme Court heard oral arguments Monday in a key church-state dispute over the status of a Christian group at a state university law school. But the discussion quickly devolved into a testy debate over the factual record in the case and what it was all about.
"What is the case that we have here?" Justice Anthony Kennedy asked early in the hourlong argument. His is a crucial and unpredictable vote in the case, Christian Legal Society v. Martinez.
Chief Justice John Roberts Jr. bared his temper in exchanges with former Solicitor General Gregory Garre, who counts Roberts as his mentor from the days when both worked at Hogan & Hartson. Garre, now chairman of the appellate practice at Latham & Watkins, held his ground as he defended the University of California Hastings College of the Law's handling of the Christian group.
The San Francisco law school denied official recognition to the society because of its bylaws, which require members and leaders to adhere to its religious views and bars membership those who advocate or participate in homosexual conduct. Those requirements, the university argued, violate the university's nondiscrimination policy, which says recognized student organizations must admit any student regardless of their "status or beliefs."
But in the briefing of the case, the parties squabbled over the breadth of the university policy -- was it an "all comers" policy that would also require a Republican club to admit Democrats, or does it have the effect of singling out religious groups as the only ones that may not exclude nonadherents?
The answer is important, because an all-comers policy might have a better chance of being upheld as a viewpoint-neutral rule that is evenly applied to all groups, not just religious ones.
Stanford Law School professor Michael McConnell, who represented the Christian group, argued strenuously that either version of the policy is unconstitutional, but justices showered him with questions that left him unable to elaborate.
One of the few assertions McConnell was able to make was that either policy is a "frontal assault on the freedom of association. Freedom of association is the right to form around shared beliefs."
Garre was also often on the defensive as he tried to convince the justices that the "all-comers" policy was in effect now and is the only version for the Court to decide on.
Noting that similar nondiscrimination policies are in effect at Georgetown University Law Center and Columbia Law School, Garre called it "not uncommon and a reasonable policy. We're not saying it's the only approach that colleges can take."
When justices cited the Christian group's different view about the policy, Garre said, "they shouldn't have stipulated" to the "all comers" interpretation.
The questioning became so intense that, at one point, Justice Antonin Scalia and Roberts both were waiting for answers from Garre. When he started to answer Scalia's, Roberts ordered, "No, start with mine."
Later on, when Garre reiterated that "all parties agree that the current policy is the all-comers policy," Roberts interjected angrily, "No, I'm sorry. All parties do not agree that the policy is the all-comers policy."
Scalia was clearly the justice most opposed to the Hastings policy. He told Garre, "it is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership; to require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy."
Justice Samuel Alito Jr. also took a swipe at the 9th U.S. Circuit Court of Appeals, which had upheld the Hastings policy in a two-sentence opinion.
"Do you think this case deserved a two-sentence decision in the 9th Circuit?" Alito asked Garre. "This case, which has produced hundreds and hundreds of pages of amicus briefs, deserved two sentences in the court of appeals?"
Garre, whose task was to defend the 9th Circuit, said yes, because the circuit had recently ruled on a similar case, which controlled the outcome of the Hastings case.