I was boarding a plane to Israel a few hours after the Supreme Court handed down its decision in CLS v. Martinez last week, so I was a bit behind the curve in reading it. In a 5-4 decision written by Justice Ginsburg, the Court upheld Hastings Law School’s decision to ban CLS from law school recognition because it requires its members and officers to sign a Statement of Faith that includes a provision affirming that sex should only occur in a marriage between a man and a woman. Relying heavily on a stipulation between the parties stating that Hastings’ policy required student groups to accept “all comers,” Ginsburg held that the policy did not violate the CLS groups’ free speech rights (it wasn’t viewpoint discrimination) or association rights (it withheld recognition and the benefits that come with it but did not coerce CLS to change its policy).
Although the Christian blog posts I’ve seen (including some by Constitutional law scholars who know vastly more about these issues than I do) have argued that a “take all comers” rule is inherently discriminatory, I don’t see the argument. If you agree that this is Hastings’ policy—and the stipulation does seem to say this—I think Justice Ginsburg is right. Such a policy strikes me as a bad idea, but lots of groups would be affected by a policy that didn’t allow them to police their membership, not just CLS.
A more serious complaint about the decision, it seems to me, is that it’s likely to lead to a lot more litigation, as groups like CLS contend that the policy isn’t being handled in an even-handed fashion. Justice Kennedy’s concurrence—the 5th vote in the case—makes clear that he would vote the other way if it were shown that the policy was really a pretext for excluding CLS.
My other concern is a more practical one. It seems to me that CLS, and evangelicals generally, should be careful about just what we fight for. Arguing that law school groups should be able to place limitations—such as a belief in Jesus Christ as our savior— on who can be a leader without sacrificing law school recognition strikes me as defensible. But I’m less certain about insisting on these strictures for ordinary members, at least of this kind of group. After all, a key purpose of CLS and other on-campus evangelical groups is evangelism. It may be that such a group could make a more winsome case for Christ if it maintained clear requirements for the leaders but were more flexible about who can participate in other capacities. If, on the other hand, the group concludes that the strictures need to apply to everyone, perhaps it shouldn’t be asking for law school recognition.