The Liberty Blog

Many of us did it when we were young and in school. Not all our friends wanted to but those who were willing to abide by the rules joined. That’s how it was done – how we made our own club with our own rules. It wasn’t complicated. But try to do that in law school. That is a different kettle of fish altogether. There the obvious is not so obvious - the uncomplicated becomes very complicated and convoluted.

Enter a group of Christian law students in 2004 at the University of California Hastings Law School near San Francisco. They wanted a club of like minded members. They put together their constitution and bylaws not unlike other “Registered Student Organizations” (RSOs). They elected amongst themselves a leadership group and outlined the process of how other law students might want to become members. Not surprisingly for a Christian group they required their members to agree to a statement of faith that included a provision against living an immoral lifestyle.

As it turned out, all the other RSOs on campus had their own rules about who could and could not be a member of their respective group. For example, the La Raza RSO was open to those of Hispanic descent, the National Lawyers Guild required members to agree with their objectives. On that campus there are groups focused on any number of identifiable characteristics and interests including race, politics, culture, ethnicity, human sexuality and religion. But it was the seemingly prudish stance of the Christian law students that brought consternation amongst the learned halls of the Hastings Law School.

While other RSOs received the benefits of university rooms to hold their meetings, eligibility to apply for funding, access to communicate their activities to the student body through email, bulletin boards and the like, listing in the student directories of organizations and the ability to be part of the Student Organizations Fair – the Christian law students were excluded. From a common sense point of view – without regard to the legal argument of rights of association, freedom of speech and religion – such a disregard seems unfathomable.

So what brought about this animus? Was there some untoward activity of the CLS group that jeopardized the University in some way? Perhaps there was unruly behaviour from some Christian law students having too much to drink or carousing that upset the standards? No, there was none of that – but what brought about the scorn of the University was the unrepentant audacity of this Christian group to only permit those members to vote and be eligible for office who would sign a statement of belief. They had to agree to the Divinity of Jesus Christ as Savior of man, the Trinity, the Bible as the inspired Word of God. That they “must exemplify the highest standards of morality as set forth in Scripture” in order “that their profession of Christian faith is credible.” That they must “abstain from ‘acts of the sinful nature.”

In March 2004 the National CLS adopted a policy that disqualified any individual from becoming a member for “unrepentant participation in or advocacy of a sexually immoral lifestyle … inconsistent with an affirmation of the Statement of Faith,” and applied to “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.” Therein lay the great matter to be addressed – the anachronistic audacity to hold a belief that sexual expression should be held in check. This was not the CLS imposing its view on other groups – it was simply dealing with its own internal members. But that was too much in the eyes of some.

The CLS students filed their registration papers to the Office of Student Services but were later informed that their by-laws had to be amended as they violated the religion and sexual orientation provisions of the Nondiscrimination Policy of the University. The University rejected as insufficient the fact that all students were welcome to attend the CLS meetings. “To be one of our student-recognized organizations,” the Hastings lawyer wrote, “CLS must open its membership to all students irrespective of their religious beliefs or sexual orientation.”

That policy appears out of sorts with the school’s forbearance of other recognized groups such as Outlaw, the gay rights group on campus that reserves the right to remove any officer who “work[s] against the spirit of the organization’s goals and objectives” or the requirement of the Hastings Democratic Caucus that its members are not to “exhibit a consistent disregard and lack of respect for the object of the organization as stated in….” it’s bylaws which is “to advance Democratic Party principles.”

CLS sued.

In preparation for trial during discovery proceedings the Dean of the law school stated that a registered group must “allow all of our students to be members and full participants if they want to.” She argued that a Republican has a right to become a member of the Democratic Club; the pro-life group must allow membership to those with pro-choice views and so on. There was never any indication that such a broad understanding of the school’s policy was ever enforced on any other group but the CLS.

Outlaw sought leave to intervene in the litigation arguing that its members, (supporters of their objective “to alleviate and eradicate homophobia, transphobia, racism, sexism, and other affronts to the dignity of individual human beings”), were excluded from CLS membership and they objected to their student fees supporting CLS.

CLS lost.

Summary judgment was given to the University and the Outlaw student group. The court reasoned that denying CLS RSO status made no significant impact. It was still able to meet and recruit members – just that they had to go off campus. Further, it did not adequately show that its views would be impaired if it were required “to admit gay, lesbian, and non-Christian students.” Even if it did have a significant impact the court was of the view that “Hastings has a compelling interest in prohibiting discrimination on its campus.”

CLS appealed but lost.

The Ninth Circuit Court of Appeal opined (in a two sentence decision) that “all groups must accept all comers as voting members even if those individuals disagree with the mission of the group.”

So then here it is in a nutshell: Hastings law school allows student groups on any number of permutations – race, culture, etc – they have a non-discrimination policy that is interpreted to mean that all students regardless of belief or status are eligible to members of any group. Even if they hold views diametrically opposed to the group’s objectives. There was no evidence that any other group had that policy enforced on them save the Christian Legal Society. The two lower courts agreed with that arrangement.

CLS appealed to the U.S. Supreme Court.

During oral argument on April 19, 2010 in Washington, DC – Michael McConnell, CLS counsel, argued that, “If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study, and if CLS does not promise to allow this the college will bar them from its forum for speech.” The school’s policy was “unconstitutional and manifestly overbroad.” He argued that to allow it to remain would force organizations to accept those who could undermine the group. “What if an NAACP chapter would have to let a racist skinhead sit in on its meetings?”

Throughout the case there has been some confusion as to what exactly Hastings policy said. It had a written policy which stated, that there would be no student group that discriminated unlawfully. But under deposition the Dean announced that the interpretation of that policy was that the school required all student clubs to admit all students who so requested membership. There could be no discrimination based on status or beliefs – there could be discrimination only on a merit based test. That policy has become known as the “all-comers policy.”

CLS maintained such a policy is overbroad to the Hastings policy to promote diversity of viewpoints amongst the RSO. It has long been the law that any restriction on a student speech forum must not be beyond what is required by the purpose. The stated purpose of Hastings is that their policy is to promote diversity of viewpoints amongst the RSO. McConnell argued, “If the student organizations are not allowed to have a coherent set of beliefs, there can be no diversity among them.”

Justice Ginsburg countered that “It may be an ill-advised policy, but the school says: It’s our policy, it’s working fine, and all the hypotheticals about sabotage, takeover, they haven’t happened.” Yet as McConnell pointed out they did not happen because it was not until 2005 when the Dean first enunciated the “all-comers” policy. Freedom of association is naturally the right to be able to form groups around shared beliefs. The CLS argues that Hastings would be well within the law to require an “all-comers” policy on the basis of status – but belief is wide open.

The CLS has maintained throughout the litigation that they will not limit membership on the basis of sexual orientation (status) as long as all members believe in accordance with the statement of faith. Thus if a gay student can conscientiously sign the statement of faith he or she will be eligible for full membership in CLS.

Justice Scalia noted, “…it is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”

Gregory G. Garre, counsel for Hastings argued that the written non-discrimination policy of the school is not the issue to be decided but rather the interpretation of that policy – confusingly referred to as the “all-comers policy”. The “all-comers policy” states that all groups that receives subsidy from the school must admit all-comers – regardless of status or belief. This ensures that all students enjoy equal access to school subsidized and recognized activities. He referenced that it was in keeping with California Education Code 66270.

Chief Justice Roberts then asked, “is it your position that California law requires religious groups to admit people who do not believe in their religious beliefs and in fact to conduct services of that group?”

Garre replied affirmative stating that “we think that the program is reasonable.”

What is reasonable for some is clearly is not reasonable for others. One has to wonder how a policy of seeking diversity of viewpoints limits those viewpoints to only one – namely that all beliefs on the limiting of sexual behaviour are wrong and will not be tolerated. It seems rather sparse.

The promise of America surely includes the right to believe whatever one so desires without limitation. This is so even if it means that such belief is repugnant to the majority – or the elite opinion makers of the day. The practice of such beliefs by necessity will be subject to constraint. That is to be expected. What is not expected is for a modern law school to be so concerned about what a group of students believe – on any given subject – that it would refuse their right of association. The study of law has been called a paper chase – a race to understand the frontiers of legal analysis, theory and practice. Yet as this case clearly demonstrates for some institutions there is an apparent limit to what beliefs individuals may hold in such pursuit. It is now up to the Supreme Court to determine whether such limits are constitutional and in keeping with America’s promise.