Christian Legal Society of Hastings College of Law v. Martinez

I. Facts

1. CLS was refused recognition by UC Hastings under an anti-discrimination policy prohibiting discrimination on the basis of race, gender, religion and sexual orientation. They were banned because their bylaws limited membership and leadership to students who affirmed CLS’s statement of faith which included beliefs about the deity of Jesus and Biblical standards of sexual conduct. Thus, they were banned from campus because their bylaws excluded students on the basis of religion and sexual orientation.

2. However, after the litigation, Hastings announced that its actual  policy for recognized student groups was a so-called "all-comers" policy, one that required all student groups to allow any student to be a member and to seek leadership positions. So at least in theory the Hastings Democratic Student group could not limit membership to democrats, the Minority Law Students could not exclude White Supremacists from membership, and the CLS could not limit membership to Christians who affirmed the CLS's doctrinal statement.

3. I don’t know why they did this, but in litigating this case CLS stipulated that the Hastings policy currently in effect was the "all-comers" policy, which, if properly enforced, applies the same standard for recognition to every student group. There is a selective enforcement issue in the case-but lets hold that for the present and focus on the how the Court analyzed the "accept all comers" policy under the First Amendment.

II. Law

1. Nonpublic Forum Rule: When a state university decides to create what is called a "non-public forum" for student groups to meet on campus, the First Amendment permits the University to impose restrictions on access so long as the restrictions are "reasonable  and viewpoint neutral."  So, for example, only student groups are recognized and permitted access to the University's limited public forum. A non-student group-for example the Lincoln Rotary Club-would not be eligible to meet in the limited public forum. In this case, under the "all comers" policy, access to the limited public forum was for student groups who adopt an all comers membership policy. Moreover, under the "all comers" policy, only student groups that were open to "all-comers" were allowed access. This renders the policy a non-public forum under forum analysis (as in Forbes).

Issue: Is the policy under which CLS was excluded both reasonable and viewpoint neutral?

2. Freedom of Expressive Association [remember the Boy Scouts case]

--From Wooley: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

--In Hurley, Justice Souter compared the idea of speaker autonomy--the right of the speaker to shape her "expression by speaking on one subject while remaining silent on another" (515 U.S. at 574) to that of a composer of a musical score who selects which notes to include and which to exclude.

-in  Dale v. Boy Scouts: "The freedom at issue here has both affirmative and negative aspects. The affirmative aspect is the right of the expressive association to select leaders who will communicate the organizations  beliefs....The negative aspect is the right not to be associated with [leaders whose] ideas and beliefs the organization  does not wish to endorse." 

What is the test concerning whether a law restricts the right to expressive association?

 The issue is whether "forced inclusion" under public accommodation laws of the unwanted member would "affect in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express." (casebook p. 1603)

The First Amendment Right of Expressive Association thus includes the right to exclude any member or leader whose presence in the group ""affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express."

Is David Duke or another known-supporter  of the KKK a good spokesperson/leader/representative for the ideas sought to be advanced by the NAACP? If a law were passed forbidding the NAACP from excluding someone like David Duke from a leadership position in the association, would it impair the NAACP's ability to clearly express its message of racial equality and racial tolerance?

Should a GLBT youth organization be free to exclude the Apostle Paul from a leadership position because of his conservative beliefs about the sinfulness of homosexuality?

III. Which Body of Law Applies

1. CLS argued that Hastings' decision to exclude it should be evaluated under both forum rules and freedom of expressive association rules.

2. But the Court held that its "limited-public-forum precedents supply the appropriate framework for assessing" CLS’s First Amendment rights.  

3. If I have two free speech rights that arguably apply to a particular case, may government require me to choose between those two First Amendment rights? In other words, may government tell CLS that if it wishes to be part of a limited public forum for student groups it must forego its right of expressive association and agree to admit atheists and others who don't support its doctrinal beliefs to be members and even leaders of the group? If it must admit non-Christians as members and leaders, is it still the Christian Legal Society?

4. The decision to apply only the nonpublic forum rules was critical, because if the expressive association  test had been applied CLS had a slam dunk case--the "accept all comers" policy facially denies recognized student groups the right to exclude members and leaders who do not share the beliefs the group exists to express!

5. Under the limited [nonpublic] public forum rule, the issue was whether the "all comers" policy was both reasonable and viewpoint-neutral. The majority concludes that it is both.

But is it reasonable to require a group to admit members and leaders with views that are totally at odds with the views the group wishes to express and with those it wishes not to express? Is it reasonable to impose an all comers policy that "affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express?"

I'm with Justice Alito's dissent. What do you think?