Christian Legal Society v. Martinez (Hastings Law School case)

This case is currently before the Supreme Court and the decision should be out soon.

Here is a summary of the case prepared by the CLS:

Recent Developments
Oral Argument April 19, 2010: Find the transcript archived here. Christian Legal Society filed its Reply Brief on April 2, 2010. Appendices to the brief are also available: Appendix A and Appendix B. On February 4, 2010, numerous Amici Curiae filed briefs in the U.S. Supreme Court in support of CLS. These briefs are available here. The Brief for Petitoner was filed in the U.S. Supreme Court on January 28, 2010. Click here to download the brief. On December 7, 2009, the U.S. Supreme Court granted CLS's petition for certiorari. Click here for Press Release and quotes.
Summary of Case
The Christian Legal Society (CLS) chapter at the University of California - Hastings College of the Law filed a lawsuit on October 22, 2004, against school officials who denied recognition to the group because the chapter requires its officers and voting members to adhere to the CLS Statement of Faith. This was not the first time a state university had discriminated against CLS (for other examples of this discrimination, click here).
The CLS chapter asked school officials in early September 2004 to exempt the group and other religious student organizations from the religion and sexual orientation portions of the university's nondiscrimination policy. As applied to CLS, this nondiscrimination policy would force the chapter to allow persons who hold beliefs and engage in conduct contrary to the CLS Statement of Faith, which includes a prohibition on extramarital sex, to join as voting members and to run for officer positions. School officials denied this request and stripped the chapter of recognition and the benefits of recognition, including student activity fee funding.
In its lawsuit CLS alleges that UC Hastings' exclusion of its chapter violates, among other constitutional rights, CLS' right of expressive association and CLS' right to be free from viewpoint discrimination.
CLS argues that is a violation of the right of expressive association to force a religious student organization to accept officers and voting members who hold beliefs and engage in conduct in opposition to the group's shared viewpoints, thereby inhibiting the group's ability to define and express its message.
CLS also argues that it is a violation of the right to be free from viewpoint discrimination to impose the above requirement on a religious student organization while permitting every other recognized student organization on campus to limit its officers and voting membership to persons who agree with the group's shared viewpoints.
On cross motions for summary judgment, the district court ruled in favor of defendants, including school officials and Hastings Outlaw, a recognized student organization, on April 2006. CLS appealed this ruling. A panel of the Ninth Circuit Court of Appeals heard oral argument in this case on March 10, 2009. The panel consisted of Chief Judge Alex Kozinski, Judge Proctor Hug, Jr., and Judge Carlos T. Bea. The panel affirmed the district court's opinion, ruling against CLS in an unpublished disposition on March 17, 2009.
On May 5, 2009, CLS filed a petition for writ of certiorari in the Supreme Court, seeking a reversal of the Ninth Circuit's decision against CLS.
The Christian Legal Society's Center for Law & Religious Freedom and the Alliance Defense Fund represent the CLS chapter, and attorneys Timothy Smith and Stephen Burlingham are serving as local counsel.

And here is a great post from ReligionVlause on the case:

Advocacy Groups React To CLS v. Martinez

Many advocacy groups and interested parties have issued statements on yesterday's Supreme Court decision in Christian Legal Society v. Martinez. Here is a sampling:

• ACLU
• Alliance Defense Fund
• American Center for Law & Justice
• American Jewish Committee
• Americans United for Separation of Church and State
• Baptist Joint Committee
• Becket Fund for Religious Liberty
• Christian Legal Society
• Foundation for Individual Rights in Education
• Hastings College of Law
• Interfaith Alliance
• Union of Orthodox Jewish Congregations

Citizens Link suggests that the decision may have limited impact because few if any other schools have an "all-comers" rule for student groups. Most have a rule that bars discrimination on specified grounds, such as race, religion, gender and sexual orientation. The majority avoided passing on the constitutionality of this sort of rule. The Chronicle of Higher Education also reviews reactions to the decision.

And here is an article: Toni M. Massaro, Christian Legal Society v. Martinez: Six Frames, (Arizona Legal Studies Discussion Paper No. 10-27, Aug. 12, 2010).

Interesting Employee Speech Case

From the ReligionClause blog:

The Toledo Blade reports that on Monday a federal lawsuit was filed against the University of Toledo by its former Associate Vice-President for Human Resources, Crystal Dixon. Dixon was fired after she wrote a column for a local newspaper arguing that gays and lesbians are not "civil rights victims." (See prior posting.) The complaint (full text) alleges that "Plaintiff, an African-American woman and sincere practicing Christian, believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic...."

The lawsuit alleges that Dixon's column expressed her personal views, and that her firing infringes her 1st Amendment free speech rights. The complaint also claims equal protection violations, arguing that others University personnel have been permitted to speak out on political and social issues without consequences. Richard Thompson of the Thomas More Law Center who represents Dixon said that homosexuals have an "inordinate amount of influence" over University president Lloyd Jacobs. The University claims that Dixon's human resources position was one of special sensitivity, and that her ability to perform that job was undermined by her statements.

Interesting Case Concerning Religious Liberty in Public Schools Settles

Here is a Liberty Counsel press release concerning the settlement of a very interesting case:

"January 29, 2008

School Board Settles Lawsuit By Amending Policy and Accepting Student’s Community Service Hours at Church

Long Beach, CA – The Long Beach District School Board has approved a settlement agreement with Christopher Rand, a high school student who was denied credit for community service hours he completed at his church. Chris has now received full credit for the hours. The district administration also rewrote its community service learning policy to allow students to complete mandatory community service hours at either secular or religious organizations, including churches, on the same terms.

In October 2007, Liberty Counsel filed a lawsuit against the district because Chris’s school refused to grant credit for more than 70 hours of community service, solely because it was performed at Long Beach Alliance Church. He interacted with the children in the church’s programs, answered questions, assisted with crafts and art projects, supervised activity time to help ensure safety, and performed other duties.

After Chris submitted the required documentation regarding his volunteer service, he was denied credit because the district’s prior community service learning policy stated, “Service to your religious community does not count.” If Christopher had given the same service in a secular school or in a nonreligious childcare program, his service would have been credited. Shortly after Liberty Counsel filed suit, the district agreed to award Chris credit for the full 72.5 hours that had previously been rejected.

In addition to giving Chris credit for his community service, the district accepted input from Liberty Counsel in revising its policy to comply with the First Amendment. Under the new policy, religious organizations will receive the same treatment as other nonprofit organizations in terms of the types of community service work that is permitted. Students are expressly allowed to supervise and assist with leading organized children’s activities, such as those performed by Chris. The district also agreed to pay attorney’s fees and costs to Liberty Counsel.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “When community service is a graduation requirement, schools cannot limit service to secular venues. Discrimination against performing community service for religious organizations violates the First Amendment and offends the rich religious heritage that made this country great.”"

Liberty Counsel, by the way is one of the leading public interest law firms in the area of religious liberty and free speech.

For Tomorrow Wednesday June 2

Read through assignment III. 5:

4. Casebook p. 279-298 (Re-read Locke v. Davey Handout 7)

5. Casebook p. 299-306

Harry Potter and Free Exercise of Religion

From the Religion Clause blog, a report of a recent case with interesting facts:

"In Cape Girardeau, Missouri yesterday, the ACLU filed suit on behalf of library-assistant Deborah Smith who was suspended for ten days without pay after she refused to work at an event that she said violated her religious beliefs. After she returned, her duties were made more labor intensive. This led her to resign for medical reasons. St. Louis Today reports that Smith refused to take part in a July 2007 event at the Poplar Bluff Public Library that was held to mark the release of the book "Harry Potter and the Deathly Hallows." Library employees were expected to dress as witches and wizards at the event. Smith, a Southern Baptist, believes that the Harry Potter books popularize witchcraft and practice of the occult. Smith's federal lawsuit-- filed after the EEOC and the Missouri Commission on Human Rights upheld her right to sue-- claims that the library's action against her violated her right to the free exercise of religion."

Speaking of Harry Potter, here is something I posted a little while ago.

Room 113 Fixed!!!

Class today--Tuesday--will be held in Room 113.

For Tuesday May 25, 2010

1. Please read the first two assignments in the Free Exercise unit plus Smith case (casebook p. 567-578)

2. Class will be in Room 113!

Pharmacists Sue

From the Religion Clause blog:

In Washington state on Wednesday, two pharmacists and the owner of a supermarket that contains a pharmacy, sued to challenge the state's new rule that requires pharmacies to fill orders for emergency contraceptives. (See prior posting.) The so-called Plan B morning-after pill is now available over-the-counter to adults. Individual pharmacists with religious or moral objections can refuse to supply a customer with the contraceptives only if they can find a co-worker at the same pharmacy to fill the order. The lawsuit filed in federal court in Seattle claims that the new rules violate pharmacists' constitutional rights by requiring them to choose between "their livelihoods and their deeply held religious and moral beliefs." The Associated Press reports on the case. [Thanks to Melissa Rogers for the lead.]

UPDATE:

Here is a copy of the complaint and the motion for a preliminary injunction. The case is Storman's v. Selecky. More on the case is at Constitutionally Correct and in this release from the Alliance Defense Fund which is representing the plaintiffs.

Which Test Do You Prefer?

If you don't like the endorsement test, which test do you like?

The coercion test?

Here is the tough case under the coercion test--what do you do if a particular state puts up displays in all public buildings stating that "Jesus is the Lord and Savior of the World." No one is required to affirm their belief in the statement, no one is required to bow down before it, but it is there in public announcing that the state endorses the religious doctrine that Jesus is Lord and Savior.

If you don't have a problem with that one, what about a state putting up displays in all public buildings stating that "Wicca is the true religion" or that "Jesus was a fraud who has deceived millions of gullible fools."

The coercion test won't prohibit these displays, unless we use a watered-down "Kennedyed" version of the coercion test.

Of course, nothing as extreme as this will happen in the real world, will it? Why not?

Mojave Cross Memorial Case Decided

Over at Scotsblog Lyle Denniston provides a nice summary of the Court's many opinions and factions:

Much ado about a little cross
Salazar v. Buono, 08-472, Opinion recap

Lyle Denniston | Wednesday, April 28th, 2010 1:44 pm

Analysis

A spectator in the Supreme Court chamber Wednesday morning could well have understood that the Justices had just made a major new pronouncement on the constitutionality of placing religious monuments on government property. Justice Anthony M. Kennedy, announcing his opinion and the Court’s ruling in Salazar, et al., v. Buono, spoke with obvious approval of erecting such monuments as tributes to those who died in military combat, and of the overall civic virtue in having religious symbols displayed on government grounds.

Kennedy was paraphrasing an opinion that said “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm….The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” The problem, though, is that those expressions had only three votes, and thus did not speak for the Court. A tangled case, which had been through four separate stages in court and had led to a new law passed by Congress, ended in a tangled set of six opinions from the Supreme Court, not one representing a majority. The ruling, though, can be sorted out, and, in the end, it does not reach any final outcome.

First, the votes can be counted up:

** There are seven votes for the notion that a retired National Park Service employee had a legal right to take to court his complaint about a small Christian cross standing in a remote spot in a massive piece of federal property, the Mojave National Preserve in California. Two Justices dissented explicitly on that point. Another citizen troubled about such displays, however, could not read the Court’s conclusion on the right to sue in this case as necessarily clearing the way for a challenge in another case with a different history.

** There are five votes for the conclusion that a federal judge was wrong in barring a congressionally-ordered transfer of the plot of ground on which the cross stands to private ownership, although that result came from two different kinds of reasoning: three Justices said it was wrong as a legal proposition, while two said the Park Service employee should never have been allowed to pursue his complaint. Four other Justices would have upheld the judge’s order (for two different reasons).

** Despite the conclusion that the federal judge was wrong on that point, the Court voted 4-4 to send the case back to that judge to take another look, more closely, at Congress’ action. The four votes in favor of sending the case back were supported by two different rationales. Four other Justices opposed the remand, but that, too, resulted from two different approaches. With the Court split evenly on that issue, though, the case definitely will go back because that is the formal “judgment” of the Court, which had five votes behind it (based on three different rationales).

** There were three votes for the notion that the Court should not even have decided this case: two Justices said so because of their view that the cross’s challenger had no right to be in court, and one said so because there was “no federal question of general significance in this case.” Those views did not prevail.

Perhaps the most decisive thing the Court had to say was this comment in the lead opinion, by Justice Kennedy: “To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules.”

Second, some impressions come from reading between the lines. Based on what was actually said, and from the known positions of some Justices on the issue of religious monuments on government property, this conclusion can be advanced tentatively: the little cross standing atop Sunrise Rock in the Mojave is likely to win out in the end, if the Veterans of Foreign Wars wants to remove the present plywood cover that obscures it from view, and put up a sign claiming the cross to be a tribute to war dead, rather than to the Christian faith. And Congress might well draw the conclusion that, at some point, five of the present Justices may well allow the lawmakers to keep a religious monument on government property by transferring the plot of ground on which it stands to private ownership. The latter, if it does occur at some point, would be a new constitutional declaration, perhaps coming close to being a “categorical rule.”

Justice Kennedy’s favorable comments about religious displays “in the public realm” were supported by Chief Justice John G. Roberts, Jr., and by Justice Samuel A. Alito, Jr. (who expressed even more favorable comments in his separate opinion). To those three probably could be added, in what Justice Antonin Scalia said would have to be “a proper case” in the future, the votes of Justices Scalia and Clarence Thomas, because in prior disputes they have supported such displays.

On the other side, three Justices — Ruth Bader Ginsburg and Sonia Sotomayor, plus the soon-to-retire John Paul Stevens — made it clear on Wednesday that they remain quite firmly opposed to such displays. And Justice Stephen G. Breyer, who has been on both sides of the issue in the past, this time voted to uphold the court order against the display in the Mojave even while saying that the Court should not have taken on the dispute in the first place.

The Court obviously labored over the ruling; it was the earliest argued case this Term still awaiting a decision, and the crafting of six opinions no doubt took up the time since it was heard on the third day of the Term.

And here are some more links from How Appealing:

Access online today's ruling of the U.S. Supreme Court in an argued case: The Court today issued its ruling in Salazar v. Buono, No. 08-472, the case involving the Mojave cross.

You can access the Court's ruling at this link and the oral argument transcript at this link.

For Today Thursday May 20

I would like to discuss whether the Lincoln Ordinance on picketing violates the Establishment Clause.

Read the Ordinance thinking about EC issues.

See y'all in class.

Rick Duncan

Prof. Jim Lindgren on "Separation of Church and State"

Over at the Volokh blog:

How Separation of Church and State Was Read Into the Constitution (Hint: the KKK got its way)

Jim Lindgren • October 20, 2010 3:38 pm

The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.
On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

"Separation of Church and State"

Please read these two links about separation of church and state and the Constitution:

1. Dreisbach

2. Lindgren

The Bible and the New York Times

Cal Thomas likes to quip that there are two things he reads each day--the Bible and the New York Times, because he likes "to keep up with what both sides have to say." There is a very good essay in the Times by Prof. Stanley Fish, a piece called God Talk.

I am not assigning it, but it is worth reading at the start of a course on Religion and the Constitution.

Update: Part Two of Fish's article appears in the NYT here: God Talk Part 2

NY Times; Corporate Speech Bad, Animal Cruelty Speech Good

Here is the editorial:

Editorial
The Court and Free Speech

When the Supreme Court ruled 8-to-1 this week that a federal law banning the sale of animal-cruelty videos violates the First Amendment, it reaffirmed the right to engage in even highly unpopular speech. And it wisely declined to create another category of expression outside of the First Amendment’s protection.

With this case and the court’s earlier Citizens United decision on corporate speech and political campaign contributions, this could be one of the most important terms in years for defining the constitutional scope of freedom of expression — for better or for worse.

Taken together, the rulings give freedom of speech a wide berth in two directions. The animal-cruelty ruling takes a strong and welcome stand that there should be only very narrow exceptions to the general rule that almost all content of speech is protected. That view is broadly accepted by most judges and constitutional scholars, and was reflected in the fact that eight justices from across the political spectrum joined the majority.

The campaign finance ruling, regrettably, gave a particular kind of speaker — corporations — a more expansive free speech right to spend than the court has ever acknowledged. The break there with the nation’s legal traditions was sharp, and opened the floodgates for big business and special-interest dollars to overwhelm American politics. That was delivered by a bitterly divided 5-to-4 court.

The animal-cruelty case involved Robert Stevens, who ran a business that sold disturbing, even disgusting, videos of pit bulls fighting and attacking other animals. Mr. Stevens was convicted under a federal law that criminalizes the sale of depictions of animal cruelty if the acts are illegal in the state where the depiction is sold.

The Supreme Court ruled, in United States v. Stevens, that Mr. Stevens’s conviction violated the First Amendment. It declined to add animal cruelty to the short list of forms of expression — including obscenity, incitement and defamation — that are not protected by the Constitution.

It then went on to rule that the federal law was overly broad, since it swept within its coverage many sorts of images that should be considered core protected speech. For example, hunting is illegal in the District of Columbia, and under the law, selling hunting magazines there would also be illegal.

The majority opinion, by Chief Justice John Roberts Jr., was a strong affirmation of the importance of freedom of expression, even in the face of substantial societal condemnation of the horrific nature of some of the speech involved. It was gratifying that the court recognized that the right way to protect animals from abuse is through laws aimed at the abuse itself, not at free expression.

The court has two more important free speech cases coming up. One raises the question of whether people have a right to keep their identities secret if they signed a petition to put a referendum against same-sex marriage on the ballot. Putting an initiative on the ballot is an important governmental act, and we hope the court does not decide that there is a right to do so anonymously.

The court has already heard arguments in a challenge to a federal law barring material support to terrorists, which prohibits some kinds of speech in support of controversial causes. We hope it narrows the statute’s scope, carefully sorting through what kinds of assistance are protected speech, and what are the sorts of aid the government can properly prohibit.

That respectful treatment of the First Amendment, also reflected in the Stevens case, is what the nation needs from this court — not the recklessness of the ruling in the Citizens United case.

Link

My own view is that political speech is at the very core of the First Amendment (regardless of who is speaking) and that animal cruelty porn, although protected, is at the outer edge of the First Amendment.

More on CLS Case

From WSJ (link):

Sameness and 'Diversity' on Campus

Why a California dean would force a black group to admit white supremacists.

If ever you wonder why those thumping loudest for tolerance and diversity produce so much sameness, look no further than this little exchange on public television about an important case now before the Supreme Court. The dean is Leo Martinez of the University of California Hastings College of the Law. Here he is defending the school policy at issue, which requires the Christian Legal Society (CLS) to admit non-Christians and gays if it wants to be an official student group:

Question: "Would a student chapter of, say, B'nai B'rith, a Jewish Anti-Defamation League, have to admit Muslims?"

Mr. Martinez: "The short answer is 'yes.'"

Question: "A black group would have to admit white supremacists?"

Mr. Martinez: "It would."

Question: "Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?"

Mr. Martinez: "Yes."

Question: "You can see where that might cause some consternation?"

Certainly there was some consternation yesterday at the Supreme Court. Justice Antonin Scalia found the idea of forcing a campus Republican club to admit Democrats "weird." Meanwhile, Justice Sonia Sotomayor worried whether allowing CLS to set its own rules would mean more discrimination against women and minorities.

But let's give Dean Martinez credit: He does not shy away from the logic of where his school's policy leads. His remarks help explain two facts. The first is why a Christian student organization has found strong allies among other faith groups. These include everyone from Agudath Israel of America and the American Islamic Congress to the Catholic bishops and the Sikh American Legal Defense and Education Fund.

The larger fact is the way that Hastings-style "tolerance" and "diversity" are actually making our campuses less tolerant and less diverse. Dean Martinez helps us see why. If every college group must admit even those who are hostile to its mission and beliefs, the result is nonsense and conformity.

At first blush, Hastings looks to be another example of the "culture wars," and where you stand on this case depends on what you believe about Christianity or traditional Christian teaching about homosexuality. Certainly Hastings tells us something about our culture wars. What it shows is how these kind of cultural skirmishes escalate into full-fledged wars when state approval or state money is involved.

Were Hastings a private institution, the same right of association now claimed by the Christian Legal Society would give the law school broader rights to set more narrow rules for students and faculty. When a handful of Orthodox Jews sued Yale in the late 1990s over the university's insistence that they live in co-ed dormitories, for example, Yale prevailed—largely because Yale is a private university. And there was no larger religious war.

Even those of us who believe a university that prides itself on its tolerance could have shown a little more accommodation toward those Jewish students do not question Yale's right to set rules that define the Yale experience. When government is involved, however, the stakes become higher and passions more excited. When a public university makes a decision, it's not simply a policy dispute. It's a public institution using your tax dollars to put a state imprimatur about who is and who is not fit for the public square.

That's a much more serious proposition than a simple disagreement with some private organization. That public/private distinction helps explain why CLS has also found allies in the libertarian Cato Institute and Gays & Lesbians for Individual Liberty. In their own brief, this latter group stresses that it was the ability of gay Americans to form gay associations—whose membership rules they defined for themselves—that gave them a collective voice in the face of an often hostile majority.

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez's logic is taking us.

"[U]nder Hastings' forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings' forum," argues their brief. "That is a patently unreasonable way to 'promote a diversity of viewpoints.'"

Exactly. Traditionally the American contribution to diversity has been the encouragement of thriving—and competing—private institutions and associations. Unfortunately, on American campuses today we see the opposite: an expanding government role in everything from research to how schools are accredited and how student loans are administered. One unintended consequence is that our culture wars are going to escalate as our courts are forced to take up a great many more cases like Hastings.

It may end up, of course, that Dean Martinez prevails, and we get more of his idea of tolerance and diversity. Let's not pretend to be surprised, however, when it all comes out looking the same.

Christian Legal Society Oral Argument Link

From How Appealing:

Access online the transcripts of today's U.S. Supreme Court oral arguments: You can access the argument transcript in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, No. 08-1371, at this link.

And ReligionClause blog has this post:

Supreme Court Hears Arguments In Christian Legal Society's Clash With Hastings' Discrimination Rules -- [Updated With Link To Transcript]

The U.S. Supreme Court this morning heard oral arguments in Christian Legal Society v. Martinez. In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) AP reports that the Justices seemed sharply split:

Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

Scotus Blog last week had an excellent background article on the case. Scotus Wiki has links to all the briefs and much more background. An editorial titled The End of Religious Freedom? in Christianity Today outlines the arguments of Christian religious groups who hope that the 9th circuit will be reversed; while an editorial in today's New York Times titled A Case of Discrimination urges the Court to support the University's position.

The full transcript of the arguments are available online. Scotus Blog also has podcasts of the oral arguments of counsel for both sides, recorded before the actual argument. Last week, the Court turned down media requests for same-day release of the audio tapes of oral arguments in the case. According to the National Law Journal, this is the seventh time this term that such requests have been rejected.

Stanley Fish on Citizens United and Free Speech

one

two

Proposed Nebraska Student Speech Law

LB 898

"Battle on Late-Term Abortions Shifts to a Clinic in Nebraska "

NYT has an article today. Here is an excerpt:

BELLEVUE, Neb. — The national battle over abortion, for decades firmly planted outside the Kansas clinic of Dr. George R. Tiller, has erupted here in suburban Omaha, where a longtime colleague has taken up the cause of late-term abortions....

Dr. Carhart declined to provide specifics on how late in a pregnancy he would be willing to perform an abortion. Dr. Tiller performed them, in some cases, as late as in the third trimester of pregnancy. Dr. Carhart’s fee schedule lists prices for abortions up to 22 weeks and 6 days (at that point, $2,100 in cash or $2,163 on a credit card), but notes that abortions after 23 weeks are available “after consultation with our doctor,” and that abortions after the 27th week may take four days.

At his clinic in the past, Dr. Carhart said, he had performed abortions up to about 22 weeks into gestation — considered by some to be near the earliest point at which a fetus can survive outside the womb, a notion known as viability and one that is cited in many laws related to abortion.