One law school will be anxiously awaiting the Supreme Court’s first “orders” of the new term this week — not because it has a student clinic with pending cases but because the school itself is the target of a petition for review.
The Christian Legal Society’s chapter at the University of California Hastings College of the Law is challenging a lower appellate court ruling that the law school’s open membership rule prohibiting registered students groups from discriminating on the basis of religion or sexual orientation is “viewpoint neutral and reasonable.”
The Christian Legal Society (CLS) is a national association of lawyers, law students, law professors and judges who profess faith in Jesus Christ. CLS filed suit after the school wouldn’t recognize the group because it denies membership to gays, lesbians and non-Christians. Last March, the U.S. Court of Appeals for the 9th Circuit ruled that the law school was not required to recognize and fund a religious student group that discriminates in the selection of members and officers. CLS is the only group from which the law school has withheld recognition.
The litigation is one of a half-dozen test cases that the society has filed in recent years against law schools around the country over similar nondiscrimination pledge requirements.
“Everyone is talking right now about same-sex marriage, but I think, in a sense, that is less volatile than this issue is,” said Marc Spindelman of Ohio State University Moritz College of Law. “This case presents what looks like a head-to-head conflict between the rights of a religious group, even if a student group and the right to equal participation in civic and public life.”
In CLS v. Martinez, the association contends the school’s nondiscrimination policy violates its First Amendment speech and association rights.
Under the policy, student groups that want to become “registered student organizations” in order to receive various benefits, such as funding, are required to allow “any student to participate, become a member or seek leadership positions in the organization, regardless of their status or beliefs.”
CLS’ counsel, Gregory Baylor of the Center for Law & Religious Freedom, argues the high court has “consistently” protected an expressive association’s right to deny leadership and membership to persons who “could adversely affect the association’s ability to express its message.”
For 10 years — from 1994 to 2004 — CLS did not bar gay and lesbian or non-Christian students from membership and leadership positions, according to the law school’s high court counsel, Ethan Schulman of San Francisco’s Folger, Levin & Kahn. But in 2004, the group changed its bylaws and refused to comply with the law school’s nondiscrimination policy.
Schulman contends this case is not an appropriate vehicle for Supreme Court review because the 9th Circuit’s opinion consisted of a single paragraph. And, he noted, the ruling primarily cited the 9th Circuit’s 2008 decision in Truth v. Kent School District (review by the Supreme Court was denied June 29).
Baylor and Schulman also disagree on whether there is a conflict among the circuits on this issue. Baylor points to the 7th Circuit’s 2006 decision in Christian Legal Society v. Walker, involving Southern Illinois University School of Law, in which CLS prevailed. But Schulman counters that Walker differs significantly in facts and procedure.
“If the Supreme Court hears the case, everyone assumes the court will come down on one side or other, but there is plenty of room in the First Amendment joints sufficient to allow institution to make decisions,” said Spindelman.
Marcia Coyle can be contacted at firstname.lastname@example.org.