SAN FRANCISCO — A Christian student group suffered wounds Tuesday in its First Amendment crusade against Hastings College of the Law.
Ultimately, though, the tough questions meted out by Ninth Circuit U.S. Court of Appeals Chief Judge Alex Kozinski and Judge Carlos Bea may not matter: The three-judge panel asked whether it should hold off on a decision, pending finality in another case that Kozinski called “completely on point.”
In that litigation, Truth v. Kent School District, the Ninth Circuit ruled against a Washington high school Bible study group, and Bea wrote a strong protest when he failed to secure enough votes for en banc review. But at the Hastings hearing, Bea appeared the good soldier: Truth is now binding circuit precedent, unless the U.S. Supreme Court overturns it.
In 2004, Hastings refused to recognize the Christian Legal Society because it wouldn’t allow gays and non-Christians to be members — violating the school’s nondiscrimination policy. This decision cost the group school funds to attend CLS-National’s annual conference.
The students sued, claiming their rights of free association and free speech had been trampled. But Northern District Judge Jeffrey White found for Hastings on summary judgment.
This is not litigation unique to the Bay Area: The Seventh Circuit upheld a temporary injunction against Southern Illinois University in a similar situation. Yet if the Christian Legal Society had any hope of a friendly panel, it was dashed a few seconds into attorney Timothy Tracey’s presentation.
“Your job here today is to distinguish this from Truth,” Kozinski said.
According to Tracey, when Hastings attempted to regulate CLS’ membership, it impinged on the group’s speech and expression rights. The facts in Truth, meanwhile, didn’t impact expression as directly, he said.
Then Tracey tried to argue that the Truth plaintiffs sought school sponsorship, which wasn’t the case at Hastings. Kozinski pounced.
“They didn’t want the money?” Kozinski asked.
“Let me make the distinction …” Tracey attempted.
“They’re not turning down the money, right?” Kozinski said. Nothing stopped the CLS group from excluding whomever they wished, the chief judge added, as long as they foreswore school funds.
The Hastings nondiscrimination regulations apply to everyone, Bea said.
“Why is this not a content-viewpoint neutral regulation, in this limited forum, that says, ‘We’re messing up everyone equally?’” he said. Senior Judge Procter Hug Jr. did not ask any questions.
The judges were much less confrontational with Ethan Schulman, the Folger Levin & Kahn partner who picked up on the Truth precedent. “We’re not writing on a clean slate here,” Schulman said.
After arguments, Schulman praised Hastings’ decision to litigate the case, when other schools have settled. “The values of nondiscrimination are held very highly,” he said.
Later Tuesday afternoon, the Alliance Defense Fund said it would indeed meet Tuesday’s deadline for filing a cert petition in Truth at the U.S. Supreme Court. “Christian student groups shouldn’t be penalized for their beliefs,” ADF senior counsel Nate Kellum said in a press release.