From the start, 2010 was the year of Christian Legal Society v. Martinez. Perhaps more than any other case this year, developments surrounding Martinez occupied the docket of the Supreme Court, the time of FIRE staffers, and the inquiring mind of yours truly.
FIRE had high hopes for Martinez. On January 1, we announced our excitement about the Supreme Court's acceptance of the case, on certiorari to the Ninth Circuit Court of Appeals. We believed that the Supreme Court would vindicate the First Amendment right to freedom of association for student groups at public universities. At the appellate level, the Ninth Circuit had held that the University of California at Hastings College of the Law (Hastings) may constitutionally deny recognition to its student chapter of the Christian Legal Society when it refuses to accept as members, eligible to run for leadership positions, students who disagreed with the organization's core values.
The Christian Legal Society at Hastings wished to limit its members to those who subscribe to the group's "Statement of Faith," which, among other things, provides that members should engage in sexual conduct only within the confines of a marriage between a man and a woman. FIRE maintains, and maintained in our amici brief to the Supreme Court, that a group's ability to select members who share its views and goals (no matter how offensive or unpopular) is fundamental to exercising its First Amendment right to expressive association.
Expressive association allows an organization to choose members that enhance its voice, and is therefore critical to safeguarding speech, especially the expression of those with minority or unpopular viewpoints. Hastings' refusal to recognize the Christian Legal Society as a registered student organization because of its desire to limit members to those who subscribe to its Statement of Faith, we believe, is therefore a violation of the First Amendment.
Hastings believed that it should not have to allow its facilities to be used by a student organization that it believed discriminated against gays and against members of other religions. This view is somewhat understandable, except it ignores the fact that when a public university establishes a forum for student organizations to engage in speech, it may not penalize groups with certain viewpoints; all viewpoints must be accepted equally. Student organizational speech is private and does not bear the imprimatur of the university.
Moreover, as we wrote throughout the year, the Christian Legal Society's right to exclude members who oppose its beliefs is not the kind of invidious discrimination that universities should prohibit in order to promote equality, but rather the kind of "discrimination" that lies at the heart of freedom of association. CLS does not discriminate on the basis of immutable characteristics like race or sexual orientation, but excludes members only on the basis of their beliefs. At the start of 2010, we explained that:
CLS does not prohibit gay students from voting membership or leadership positions if the gay student shares CLS's view of homosexuality. CLS believes that effectively expressing the group's view of homosexuality (or adultery, or premarital sex) requires those students who do engage in this conduct to be repentant about their actions, per CLS's religious beliefs. That means that CLS isn't discriminating based on a student's immutable status, but rather that CLS is "discriminating" based on a student's changeable beliefs and conduct. In a nutshell, CLS asks that its membership and leadership be comprised of students who actually believe in the group's core tenets, in the same way that the College Democrats want their membership and leadership to be Democrats and the College Republicans expect their membership and leadership to be Republicans.
Before dawn on April 19, I camped out at the Supreme Court to try to attend the Martinez oral arguments. Unfortunately, because the case attracted so much attention from scholars, advocates, civil rights and civil liberties groups, and religious groups, there were too many people in line ahead of me, and I just missed being admitted into the majestic court on One First Street. Instead, I devoured the written transcript of oral arguments.
Far worse than my inability to attend oral arguments was the Court's opinion in Martinez, issued in June. First, the Court declined to rule on the constitutionality of Hastings' actual nondiscrimination policy, holding that both sides had stipulated to the fact that Hastings applied an "all-comers policy." This stipulated policy, which required all student organizations to accept all students as voting members, is dramatically different from Hastings' nondiscrimination policy, which prohibited only specific types of discrimination, such as discrimination on the basis of religion or sexual orientation. Hastings' nondiscrimination policy burdened only certain groups' ability to exercise their right to expressive association.
The Court then held that Hastings' all-comers policy did not violate the First Amendment because it was a reasonable and viewpoint neutral restriction on expressive association. The Court not only imported a test (reasonableness and viewpoint neutrality) never before used to analyze expressive association claims, but the majority blithely ignored the possibility of "hostile takeovers," where the all-comers policy would make groups expressing unpopular views susceptible to being taken over by those in the campus majority who are hostile to their message. The Court also seemed to indicate, contrary to precedent, that just because a university lends its facilities to student organizations, it somehow sponsors that speech.
We at FIRE are quite disappointed with the majority's often sloppy analysis and undue deference to university administrators. As Greg remarked, "This is a loss for diversity and pluralism on campus, not a win." The year of Martinez has not been a total loss, though. One positive outcome is that the case has inspired an important dialogue about First Amendment rights on campus. Greg delivered a speech in October about the state of freedom of association on campus, and his interview with Campus Progress was picked up by The Huffington Post. Hopefully, university administrators will realize that just because they are now constitutionally permitted to enact all-comers policies, it does not mean these are wise or good policies.