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Christian Legal Society v. Martinez--Skeel

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.


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Comments ( 2 )

Hi David,

I'm a Canadian law student taking your class at Regent later this summer. I think I would have to agree with your post. Perhaps you can make a strained argument that not allowing groups to exclude members with opposing viewpoints discriminates against the holders of the conservative views themselves (the Christians). But the more obvious discrimination is certainly of the excluded potential members. Certainly, in Canada, and at my school, a case like this would not be going to the Supreme Court of Canada. The CLS would get hammered in a human rights tribunal or lower level court, and appeals would probably never get out of the province.

Also, I think it is important to consider, especially in the University setting, what is gained by excluding people -- potentially people interested in Christianity, that may be making progress, but that have not yet wrapped their hearts and minds around Christian theology regarding homosexuality? Why make yourself known for such a difficult and easily misunderstood position? Do Christians want to be known for excluding people? If you exclude from the outset, how will these people ever reach the point where they can sign off on what is admittedly a radically counter cultural statement of faith?

I suppose you could argue that an exclusionary policy prevents the watering down of the Christian groups - not just a social club for spiritual people. And I suppose that the slippery slope concerns would be that this could have implications for Church membership policies, or Christian workplaces.

But overall, it just seems silly to be excluding the people that Christian Mission is all about.

I think you're absolutely correct in suggesting that a distinction be made between leadership of these groups and rank-and-file members, particularly in a group that one presumes is committed to outreach (i.e., evangelism!).