Constitutional Watch: Christian Legal Society v. Martinez – The Supreme Court Just Doesn’t Get It




by Diane Rufino, July 11, 2010

On June 28th, the Supreme Court handed down yet another disappointing and discouraging decision regarding religious expression and association in this country. It seems that the Court with the responsibility to preserve the intention and integrity of our Constitution and to see that it is faithfully executed and respected, has turned its back on the one group that has been needing its advocacy the most…. Christian religious groups.  In its recent decision touching on religious rights, in the case Christian Legal Society Chapter of the Univ. of Calif., Hastings College of Law v. Martinez, the Supreme Court upheld a California law school’s denial of recognition to a Christian student group by a narrow and disappointing 5-4 decision. The American Center for Law and Justice (ACLJ) and the Alliance Defense Fund, both focusing on Constitutional law and in particular, First Amendment Rights, publicly stated that they are “extremely disappointed” in the decision.  And Justice Samuel Alito, who wrote a scathing dissent, stated that this decision represents “a serious setback for freedom of expression in this country.”

The facts of this case are as follows:  Hastings College of the Law, a school within the University of California public-school system, extends official recognition to student groups through its “Registered Student Organization” (RSO) program.  Several substantial benefits are associated with this school recognition status, such as funding, access to facilities and channels of school communication (including school bulletin boards and school email), and Hastings name and logo.  In exchange for recognition, however, RSOs must abide by certain conditions, including mandatory compliance with the school’s Nondiscrimination Policy (which tracks state law barring discrimination on a number of bases, including religion and sexual orientation) and its “all comers” policy (that is, RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of his or her status or beliefs). At the beginning of the 2004–2005 academic year, the leaders of an existing Christian RSO formed the Christian Legal Society (CLS) by affiliating with a national Christian association that charters student chapters at law schools throughout the country. These chapters must adopt bylaws that, among other things, require members and officers to sign a “Statement of Faith” and to conduct their lives in accordance with prescribed principles. Among those tenets is the belief that sexual activity should occur only between a man and a woman and should not occur outside of marriage. CLS interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct” or holds religious convictions different from those outlined in the Statement of Faith. Furthermore, CLS’s religious beliefs prevent non-Christians from exercising control over the group by becoming voting members or serving in leadership positions. When CLS applied for registration in 2004, Judy Hansen Chapman, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, a written policy designed to provide equal access for all students to college affiliated and supported activities and which forbids recognized groups from discriminating on a number of factors.  That policy provides in pertinent part that “the University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”

If you have read this case, you will understand what I am about to try to explain. Otherwise, if this review is the first you’ve read on this case, you’ll be struck by the confusion that this case presents.  As I’ve outlined in the previous paragraph, there are two policies that Hastings uses with respect to its registered student organizations: The Nondiscrimination policy and the “all-comers” policy.  The CLS was not aware of the second policy.  In fact, in the correspondence from the school denying recognition, the only reason communicated to CLS was that its bylaws violated the Nondiscrimination policy.  When a student representative of the CLS approached school officials to seek $250 in travel funds so a chapter officer could attend a national conference of the Society, officials stalled the request, concluding that the chapter’s new by-laws violated Hastings’ Nondiscrimination policy. A few days later, the chapter met with Ms. Chapman and again the group was told that its bylaws violated the school’s Nondiscrimination policy.  The group was advised that they would need to revise their bylaws and make them more compliant if they wanted recognition.  After the chapter refused to alter its by-laws to conform to the school policy, official recognition was denied, and the requested travel funds were withheld, which led the chapter to sue in federal District Court.  (Martinez represents UC Hastings, the party being sued). The CLS brought suit on the basis of religious discrimination, with respect to the school’s Nondiscrimination policy.  As far as the record reflects, Ms. Chapman made no mention of an “accept-all-applicants” policy.   The confusion in the case comes from this policy, which only made its entrance in the case after the suit was initiated.  It was not until July 2005, when the then-Dean of the Law school, Dean Kane, was deposed (over a year after the initiation of the suit), that the “all-comers policy” was introduced as a policy (together with the Nondiscrimination policy) that the school uses to condition recognition of an RSO.  Yet it is this policy that turned out to be the issue upon which the Supreme Court decided to focus on the case.

It was not until 2005 that Hastings claimed it rejected CLS’s application for RSO status because that group’s bylaws did not comply with Hastings’ open-access, “all-comers” policy.  That claim contradicted the record.  According to the Dean, Hastings rejected the application because CLS excluded students for membership or leadership positions based on religion and sexual orientation, in violation of the “all-comers” policy.  Yet according to the official record, the reason given for denial of recognition was violation of the Nondiscrimination policy – the group’s bylaws were in contradiction to the spirit of the policy.  In other words, Hastings denied official recognition to the Christian Legal Society after CLS said it could not abide by the school’s non-discrimination policy since that policy forbids student groups from discriminating on the basis of, among other things, “religion.”   It is important to distinguish between these two policies when reviewing the case and the decision of the majority of the Court.

CLS filed this suit for injunctive and declaratory relief under 42 U. S. C. §1983 (Federal statue providing a civil action for deprivation of rights, originally enacted as part of the Civil Rights legislation of 1871; also originally known as the “Ku Klux Klan Act”), alleging that Hastings’ refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. On cross-motions for summary judgment, the District Court ruled for Hastings. The District Court held that CLS presented no genuine issue of controversy and so there was no need to move the case forward; hence, judgment was granted to Hastings. The court held that the “all-comers” policy, as a condition to being recognized as an RSO, which is defined legally as a “limited public forum” for speech and expression purposes, was both reasonable and viewpoint neutral (ie, the language of the policy didn’t show any obvious discrimination), and therefore did not violate CLS’s right to free speech. Nor, in the court’s opinion, did Hastings impermissibly burden CLS’s right to expressive association: Hastings merely placed conditions on the use of school facilities and funds. The court also rejected CLS’s free exercise argument, stating that the Non-discrimination Policy did not single out religious beliefs, but rather was neutral and of general applicability. The Ninth Circuit affirmed, ruling that the “all-comers” condition on RSO recognition was reasonable and viewpoint neutral.

[A few definitions might be helpful here.  When analyzing ‘freedom of speech’ cases under the First Amendment, the court will use “forum” analysis.  The court will ask ‘What type of forum was the speech conducted in?’ The Supreme Court recognizes three different types of forums for non-government speech: “traditional public forum,” “limited public forum,” and “private forum.”  Each forum defines the extent to which a person can exercise his or her freedom of speech.  A “public forum” is a constitutional term that refers government-owned property that is open to public expression and assembly. This would include parks and sidewalks, and the like – traditional public and common areas.  A “limited” public forum is one that is open for limited purposes and for limited expression. An example would be school property other than the classroom, school groups, college student groups. Hastings created “limited public forums” with its RSOs.  Private forums are just that. An example is a classroom and even a mall.  Individuals have their most robust rights of free speech in a traditional public forum and the least in a private forum.   Restrictions on speech in a limited public forum are upheld constitutionally if they pass strict constitutional scrutiny.  The Supreme Court has defined this type of scrutiny to mean that the limitations on speech and expression must be viewpoint-neutral and reasonable in light of the purpose of the forum.]

The Supreme Court granted certiorari (ie, agreed to hear the case).  CLS initially challenged Hastings decision to deny recognition to the group under its Nondiscrimination policy (which was the official reason the school gave CLS).   It argued that the policy targets only those groups that organize around religious beliefs or that disapprove of particular sexual behavior, and leave other associations free to limit membership to persons committed to the group’s ideology.  It claimed that Hastings discriminated against the group, based on its viewpoint.  Despite CLS’ claims and despite the fact that the “all-comers” policy was not introduced until later in the case, the majority of the Supreme Court chose not to address this issue of the Nondiscrimination policy and its discriminatory impact.  Instead, they chose to address a more limited legal question: Regarding student activities at public universities, may a public law school condition its official recognition of a student group, and hence the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students (ie, “all-comer” policy)?

The opinion of the Court was delivered by Justice Ruth Bader Ginsburg, the notorious liberal member who came from the ACLU (where she was the chief litigator of the ACLU’s women’s rights project).  It was no surprise that the other liberal members of the Court – Stevens, Kennedy, Breyer, and Obama’s pick, Sotomayor, joined in the opinion.  Justice Samuel Alito filed a very lengthy dissenting opinion and was heartily joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia.

The majority considered only whether Hastings’ conditioning access to a student-organization forum on compliance with an “all-comers” policy violates the Constitution. Again the case would turn on forum analysis and the proper guidelines for permissible speech in that forum.  As the Court stated: “”Our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa­tion rights.”  Rather than use Constitutional analysis to determine if the policy discriminated and burdened religious expression as it was applied to CLS, the Court applied a simple facial analysis of the policy. The Court asked if the policy, “on its face,” was “viewpoint neutral and reasonable.”  And the majority of the Court concluded that it was.  In support of this viewpoint, the majority noted that “ “Hastings requires that RSOs allow any student to participate, regardless of his or her status or beliefs. For example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs… ”

The majority relied on several earlier cases in reaching its decision, among them being the Rosenberger v. University of Virginia (1995) and the Roberts v. United States Jaycees (1984) cases.  In Rosenberger, a University of Virginia student, Ronald Rosenberger asked the University for almost $6,000 from a student activities fund to subsidize the publishing costs of their publication entitled “Wide Awake: A Christian Perspective at the University of Virginia.” The University refused to provide funding solely because University guidelines prohibit publications which “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.”   The legal question before the Court was this:  Did the University of Virginia violate the First Amendment rights of Rosenberger and his Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines?

The Court, in a divided 5-4 opinion (along conservative/liberal lines), held that the University’s denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. In other words, a university generally may not withhold benefits from student groups because of their religious outlook. As the Court wrote: “Once it has opened a limited public forum, the State must respect the lawful boundaries it has itself set….  It may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of viewpoint.” (Rosenberger, pg. 829).  The Court continued by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective.  In fact, in a series of past decisions, the Court has shown the same willingness to demand that religious groups not be discriminated against based on the content (viewpoint) of their speech.

In Roberts, membership in the United States Jaycees, according to its bylaws, was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office. Two chapters of the Jaycees in Minnesota, contrary to the bylaws, admitted women as full members. When the national organization revoked the chapters’ licenses, they filed a discrimination claim under a Minnesota anti-discrimination law. The national organization brought a lawsuit against Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for the enforcement of the anti-discrimination law.  The question before the Court was this:  Did Minnesota’s enforcement of the anti-discrimination law violate the Jaycees’ right to free association under the First Amendment?

In a unanimous decision, the Supreme Court held that the Jaycees chapters lacked “the distinctive characteristics that might afford Constitutional protection to its decision to exclude women.” The Court reasoned that making women full members not impose any serious burdens on the male members’ freedom of expression.  Furthermore, it reasoned that Minnesota has a compelling interest in eradicating discrimination against women which justified its enforcement of the state anti-discrimination law. The Court found that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint.  Personally, I was surprised there was no mention of the First Amendment right of association.

It seems to me that the Supreme Court got it right in Rosenberger, although it is extremely troubling that it was only by a narrow 5-4 majority.  Only a slim majority of the Court recognized the right of students to express their religious views, just as other students enjoy their rights to bash the Bible, endorse homosexuality, and extol the great virtues of living a consequence-free lifestyle and speaking their poisoned minds.  In Roberts, the Court clearly imposed their opinions about whether women would burden the memberships’ (all-male up to that point) freedom of expression.  Who in their right minds would conclude that adding women to the mix wouldn’t necessarily chill dialogue and expression?  Try adding women to a man’s bachelor party.  Try adding girls to the Boy Scouts.  Having females present at an all-male membership club absolutely burdens their association and burdens the conduct that teaches them to be males and enjoy male camaraderie in a healthy way.  So, in light of these two decisions, I believe the Supreme Court took the timid way out in the Hastings case.  The Court failed to stand up for the rights of like-minded individuals, united by a similarity of viewpoint and outlook, and assembled for lawful expression and for a lawful purpose to put their speech out into the mainstream of ideas. Despite what our liberal courts and our government tries to force down our throats, I don’t believe anyone should be forced to mingle with others they fundamentally do not agree with or do not share a sufficient degree of commonality with.  It stifles expression and speech.  It inhibits the free expression of one’s personality.  That goes for groups who form for gender related purposes, it goes for groups who form for alternative sexual preference purposes, and it should go for groups who form to naturally share in the delight and joy that comes from sharing in the same religious outlook for life and for conduct.  In my opinion, the fundamental right of assembly and expressive assembly have not been respected nearly enough. The  Right of Assembly, protected by the First Amendment to the United States Constitution, is the fundamental right to gather or associate with others for any purpose that would be lawful if pursued individually.

But that aside, I believe in this most current case, Hastings, it is the opinion of the dissenting Justices which makes the better argument. Justice Samuel Alito criticized the majority for focusing on the ‘all-comers’ policy.  By doing so, he said that it freed the Court from the more difficult task of defending the Constitutionality of the policy that Hastings actually, and repeatedly, invoked when it denied registration (i.e., the school’s written Non-discrimination Policy).  Justice Alito (joined by Chief Justice John Roberts, Clarence Thomas, and Antonin Scalia) began the dissent as follows: ”The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’  (Schwimmer),). Today’s decision rests on a very different principle: No freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.  The Hastings College of the Law, a state institution, permits student organizations to register with the law school and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society. CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights.  Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered organizations must admit any student who wishes to join. Deferring broadly to the law school’s judgment about the permissible limits of student debate, the Court concludes this “accept-all-comers” policy is both viewpoint-neutral and consistent with Hastings’ pro-claimed policy of fostering a diversity of viewpoints among registered student groups.”

The dissenters made it clear that they believed the majority’s treatment of this case was deeply disappointing. They were troubled that the Court failed to address the constitutionality of the Nondiscrimination policy which Hastings invoked when it denied CLS’s application for registration.  CLS had argued that this policy of non-discrimination actually had a discriminatory “effect” or “impact” (as opposed to a discriminatory “intent”) which bore solely on religious groups.  With respect to nearly all other groups seeking RSO recognition, it was possible to forego discriminations based on age, color, and race (except for La Raza, an Hispanic group that defined itself in its title by race). But to bar discriminations based on sexual orientation would be to strike at doctrines that were part of the defining features of orthodoxy for Christians, Jews, and Muslims.  As explained earlier, Hastings attempted to deal with this argument (apparently after more than a year into the case) by claiming that the school also recognized an “all-comers” policy for official recognition.  The Dean explained the policy as this: “Each group had to be open to everyone who wished to join, regardless of whether they shared the purposes and commitments of the group… For example, a Jewish group would be obliged to admit Muslims, the Muslims would have to take in Jews, the blacks would have to accept members of the Ku Klux Klan.” The fact that this policy was offered after the fact is powerful evidence that it was offered merely as a pretext to justify the school engaging in viewpoint discrimination against religion. CLS’s application had NOT been denied more than a year earlier based on the “all-comers” policy but rather because the school didn’t like its policy (bylaws) of electing only members who embraced the group’s religious principles.  As further evidence of its intent to shut down the group’s message, when CLS requested to set up a table on school property to disperse literature on various occasions, Hastings refused to grant permission, even though setting up tables requires no school funding or burden to the school in any shade of the imagination.  Justice Alito was deeply troubled by this fact, as well as the timing of the school’s “all-comers” policy claim.

The dissenters emphasized the precedential effect of Healy v. James (1972), the Supreme Court’s only First Amendment case involving a public college’s refusal to recognize a student group. In that case, an 8-0 Supreme Court barred Central Connecticut State College from denying recognition to a student chapter of Students for a Democratic Society (SDS), a controversial group that at the time of the ruling had strongly protested the War in Vietnam and would not denounce violence as a means to pursue its agenda.  Justices across the legal spectrum from William O. Douglas to Warren Burger agreed with the result on free speech grounds.  When the students who applied for recognition of their chapter were asked by a college committee whether they would “respond to issues of violence as other SDS. chapters have” (meaning, would not support or allow it), their answer was that their “action would have to be dependent upon each issue.” They similarly refused to provide a definitive answer when asked whether they would be willing to “use any means possible” to achieve their aims. The president of the college refused to allow the group to be recognized, concluding that the philosophy of the SDS was “antithetical to the school’s policies” and that it was doubtful that the local chapter was independent of the national organization, the “‘published aims and philosophy’” of which included “‘disruption and violence.’”

In Healy, the Court had no problem finding in favor of the SDS, for the negative effects or burdens of non-recognition on their rights of assembly and speech/expression were too great. In that case, with a political group at issue, the Court held that the denial of recognition substantially burdened the students’ right to freedom of association. After observing that “the primary impediment to free association flowing from non-recognition is the denial of use of campus facilities for meetings and other appropriate purposes,” the Court also noted that “the SDS’s associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization’s ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other students. Such impediments cannot be viewed as insubstantial.”  [Healy, pp. 181-182]

Healy and Hastings are very similar cases and the dissenters were wise to compare them.  Both represent cases in which student groups were denied recognition because of their viewpoints. In Healy, the Central Connecticut State College explicitly denied the student group official recognition because of the group’s viewpoint.  And in Hastings, CLS was denied recognition under the Nondiscrimination Policy because of the viewpoint that CLS sought to express through its membership requirements.  Furthermore, the effects of non-recognition were pretty much the same in both cases. The CLS, like SDS, was denied the opportunity to openly put its ideas into the campus marketplace of ideas along with other recognized student groups, as well as being denied the use of campus facilities and access to the customary means used for communication among the members of the college community.  Justice Alito noted that “to appreciate how far the Court has strayed” all one needs to do is see how the Court has done a complete reversal from Healy in this present case, when the facts and issues were nearly the same.  He scolded the majority when he wrote: “This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad. We have never before taken the view that a little viewpoint discrimination is acceptable. Nor have we taken this approach in other discrimination cases.”  [Hastings, pg. 622].

Alito continued to chide the majority for abandoning the legal reasoning and precedent set down in Healy.  He scolded the majority further with these words: “Unlike the Court today, the Healy Court emphatically rejected the proposition that ‘First Amendment protections should apply with less force on college campuses than in the community at large.’ (pg. 180). And on one key question after another—whether the local SDS chapter was independent of the national organization, whether the group posed a substantial threat of material disruption, and whether the students’ responses to the committee’s questions about violence and disruption signified a willingness to engage in such activities—the Court drew its own conclusions, which differed from the college president’s. The Healy Court was true to the principle that when it comes to the interpretation and application of the right to free speech, the Court must exercise its own independent judgment.  It must not defer to university administrators on such matters.” [Hastings, pg. 625].

But according to the dissenters, this case wasn’t only about the right to free speech.  It was also about the right of expression and association. As Justice Alito stated: “There are various older Supreme Court cases which make it abundantly clear that “religion is a viewpoint from which ideas are conveyed.”    (Hastings, pg. 627  and  Rosenberger, pg. 831).  The First Amendment protects the right of “‘expressive association,” which is “the right to associate for the purpose of speaking.”  (Rumsfeld, pg. 68).  And the Court has recognized that the right of expressive association permits a group to exclude an applicant for membership if admission of that person in the group would “affect in a significant way the group’s ability to advocate public or private viewpoints.”  (Dale, pg. 648).  If the forced inclusion of an unwanted person (one who doesn’t share the same viewpoints, perhaps) significantly affects the group’s ability to have a discussion or advocate its viewpoints or advance its viewpoints, then the group’s right of expressive association would be burdened or even violated.  With one important exception, the Hastings Non-discrimination Policy respected the right of expressive association. As Hastings admitted, the Nondiscrimination Policy “permitted political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.”  But the policy singled out one category of expressive associations for disfavored treatment.  Any guesses?  Yep, you got it – groups formed to express a religious message. Only religious groups were required to admit students who did not share their views.  An environmentalist group which was granted RSO status (ie, received university recognition and funding) was not required to admit students who rejected global warming. An animal rights group which was recognized was not obligated to accept students who supported the use of animals to test cosmetics.  But CLS was required to admit avowed atheists. The Nondiscrimination policy may not have been discriminatory on its face, but its impact certainly was.  The impact was to unduly burden the first amendment rights of religious groups without impacting those of other groups. This was patent viewpoint discrimination.

Justice Alito pointed out the fact that the record was replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization.”  The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must “adhere to the objectives of the Student Chapter as well as the mission of ATLA.”  A student could become a member of the Vietnamese American Law Society so long as the student did not “exhibit a consistent disregard and lack of respect for the objective of the organization,” which centers on a “celebration of Vietnamese culture.” Silenced Right limited its voting membership to students who “are committed” to the group’s “mission” of “spreading the pro-life message.” La Raza limited voting membership to “students of Raza background.”  Since Hastings requires any student group applying for registration to submit a copy of its bylaws, Hastings cannot claim that it was unaware of such provisions. And as noted, CLS was denied registration precisely because the school (through Ms. Chapman) reviewed its bylaws and found them unacceptable.  When Justice Alito questioned CLS about its position regarding these discrepancies, CLS explained that once the group became very vocal regarding such obvious discrepancies, Hastings responded by taking official action to ensure that student groups were in fact complying with the law school’s newly disclosed “accept-all-comers” policy.  Such subsequent action is usually evidence of discrimination. As Justice Alito hinted, it is likely that the “all-comers” policy was offered merely as a pretext to justify the school engaging in viewpoint discrimination against religion.

The dissenting opinion ended with these words: ”In the end, the Court refuses to acknowledge the consequences of its holding. A true accept-all-comers policy permits small unpopular groups to be taken over by students who wish to change the views that the group expresses…. There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization…  I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country. Our First Amendment reflects a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ (Sullivan, pg. 270).   State colleges and universities are not immune from the sweep of the First Amendment.  The precedents of this Court make clear that First Amendment protections should never apply with less force on college campuses than in the community at large. In fact, it’s quite to the contrary.  ‘The vigilant protection of Constitutional freedoms is nowhere more vital than in the community of American schools. The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new Constitutional ground in reaffirming this nation’s dedication to safeguarding academic freedom.’  (Tucker, pg. 487).  Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm.  But I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.”  (Hastings, pg. 746).

I‘d like to offer that there was a legitimate and novel, and timely Constitutional issue lurking in this case.  That issue was this:  How far can a public college go in its attempts to ensure an equal educational opportunity for all students before it ends up intruding on the private beliefs and expressive association of certain groups… before it ends up discriminating ?  But the Justices, for whatever reason, chose not to pursue this legal question. Justice Alito and the other dissenters condemned the majority’s opinion as being an “exercise in political correctness” more than it was an exercise in true Supreme Court jurisprudence.  In covering the case, The Washington Post titled its review: “Politically Correct, Legally Wrong.”  The review described the potential that this case held for the Supreme Court:  “Picture this: gay student organizations forced to accept those who believe that homosexuality is an abomination. Student political groups, such as Young Republicans or Young Democrats, compelled to allow members of the other party to vote on policy platforms. A law association for African American students being told that it must let white supremacists run for leadership posts. Sound absurd? Welcome to the University of California, Hastings College of Law. The school says that student groups that want to enjoy certain benefits must adhere to the school’s nondiscrimination policy. Fair enough, except that the school’s ‘all comers’ policy requires that a group accept as voting members even those who disagree with its core principles.”

Justice Alito also made a good point. He suggested that the school’s policy, to be applied according to their description, would require that a group of 10 Muslim students must allow 50 students who had strongly anti-Muslim views to come in, take it over, and run it as they pleased. “You would say the First Amendment would allow that?”  the Justice asked. “That has never happened in 20 years,” Hastings’ attorney responded, but both Alito and then the Chief Justice dismissed that comment as unresponsive.  What Ginsberg and the rest of the majority failed to realize is that associations are a fundamental basis of humanity and of human society.  When “association” furthered the Court’s agenda, as in Brown v. Board of Education (mandatory integration for schools), the fundamental right was embraced.  In this case, it meant nothing. After all, petitioners were only Christians, right?

Perhaps this genuine legal question posed above will be framed by another case and will come before the Supreme Court for a decision.  But there are many who believe this case presented an ideal scenario. I for one, believe this decision is a huge disappointment and an embarrassment.

The sad thing is that there actually appeared to be flagrant and intentional religious discrimination in this case with the school’s “all comers” policy which never received attention by the majority.  Justice Alito, the most aggressive questioner during oral arguments, could never get Hastings to dispute the fact that the school did not require any group but the CLS to have an open-membership policy.  Sure Hastings College might have an interest in providing equal access to student groups (forums) to foster non-discrimination and more varied social education. As Kennedy wrote in his separate concurrence: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”  Did the Justices once consider that perhaps the CLS wasn’t looking for a “vibrant dialogue”?  Perhaps it just was looking for a forum to express their views, just as the other groups were allowed to do.

So for now, we have to live with the fact that the Supreme Court missed a good opportunity to offer legal guidance in those instances where public school policy, although perhaps striving for a neutral goal such as enriching the education experience, actually disproportionately burdens religious expression and association rights on campus.  Our liberal Justices substituted their views for a Christian group who has claimed discrimination based on its religious message and burdens on its rights of speech and expression and expressive association by a public entity in a substantial way.  They substitute their views in the face of overwhelming evidence to the contrary.  And with each decision they recklessly lay down, they chisel away our nation’s religious rights and chill whatever religious expression rights that actually do remain for fear of “being denied school recognition” or being sued.

Regretfully, the effect of this case might be that we will see schools combining their longstanding Nondiscrimination policies with this new policy of accepting “all-comers” – since the Supreme Court has now blessed that policy.  After all, it’s a perfect policy to reflect and embrace diversity and promote those educational goals.  But once this new policy is installed more pervasively, it will likely provide the lever for finally driving Christian groups from college life. The scene is in place now to have gay activists seek to become officers in these Christian groups, as they have at Tufts and other schools. Indeed, such policies have used in challenging Christian groups and bringing complaints that threaten their standing in their colleges.  An “all-comers” policy is a handy tool for liberal universities to weed out seeds of conservatism.  Armed with the decision in CLS v. Martinez, colleges and universities are free to pursue a number of discrete efforts to dissolve existing “exclusive” associations that do not advance their liberal agenda.  Individual rights of association are a fundamental basis of a free human society.  Not so in a communist or totalitarian regime. In a country where the state is supreme and individuals are merely nameless, faceless members, where the government dictates everything and controls everything, the individual rights of association and expressive association are dangerous.  Religious principles are inconsistent with liberal policies. Religious principles, even though they have shaped our nation, inspired our laws, and guided our government and societies, are inconsistent with the liberals’ Brave New World.  Our students can’t read or talk about the Bible in school. But prisoners can read it in jail.  Maybe they wouldn’t have to become acquainted with the Bible in jail if they were allowed to have access to it in their youth.  I guess certain members of the Supreme Court never got the memo –  that our government is never supposed to be hostile or intrusive into religion.  As Justice Douglas said in 1952: “There is no requirement in the Constitution that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe…   We find no Constitutional requirement making it necessary for government to be hostile to religion….. We cannot read into the Bill of Rights such a philosophy of hostility to religion.”

I ask this question: Do you think the Founding Fathers intended for nine Supreme Court justices, who are appointed rather than elected (appointed for life), to not only control our nation, but to control it with no way to override its decisions, with no checks on its powers?  Do you think the Founding Fathers intended for nine potentially rogue judges to use the Constitution as a blank check and write into law their own versions of what society should look like, act like, and be confined by ?  Do you think they intended for these nine potentially rogue judges to use the Constitution as a blank check and write into law their own ideas of “the evolving standards of decency that mark the progress of a maturing society” ?  (as Chief Justice Earl Warren once wrote, in 1958).

How many of you go about your lives never realizing that nine judges are responsible, in large part, for the condition of our society, the decay of our families and schools, the increase in crime, the gradual removal of God from our daily lives, the perpetual government hand in our purses, the enlargement of our federal government and the concentration of almost all power in our country in three branches of government that almost always seem to care less about you and I and more about how to provide more benefits to those who don’t want to do anything for themselves, how to provide more protections for those who ignore all bounds of productive behavior in an ordered and decent society, how to screw up this country and the legacy that our descendants worked hard and often died to build, and how to make deals to keep the money train going for their elections and for their “retirement plans.”

The most important factor for me in any Presidential election is whether the candidate will have the opportunity or not to nominate someone to the Supreme Court.  If so, I make sure I know what my candidate stands for and whether he is likely to nominate someone with integrity and someone who will follow the Constitution rather than try to change it.  After all, a decision from the Supreme Court will affect my children, their children, and additional generations as well.  And the way things are going, we Americans don’t know if we can truly count on the rights and liberties we assumed we had.  Just look at the Court’s decision on gun control this month (July 2010) in McDonald.  In a very divided and very close decision (5-4), the Supreme Court held that yes, good and decent citizens have the right to bear arms to protect themselves from the threat of violent crime.  But that majority could have easily been 5-4 in the opposite direction and we could have lost this very precious right.  We all could have told by our states and local governments that we don’t have the right to own a gun and we could have been left helpless to watch violent crime continue to rise and take note that while we don’t have the right, as good and decent citizens, to own guns, the ability for the bad guys to get guns knows no bounds.  So let’s rejoice this year for this great decision and enjoy this fundamental right while it still lasts.  The next Justice to step down will give the President at that time the opportunity to appoint a replacement, and if it’s someone like Barack Obama or another liberal-minded individual, that new replacement may very well help craft the Court to deny that very right the next instance it comes up for review.  I urge everyone to be ever eternally vigilante.

Whether you believe it or not, the bad decisions of the Court do have very real and measureable consequences on our lives.  For example, when the Supreme Court ordered that religion be taken out of our public schools in 1963 (with the Abington decision), violent crime increased 700%. Within no time, metal detectors and dedicated police officers have become part of the normal landscape and experience of our children and grandchildren’s education.  In fact, crime jumped so high among junior high students that the federal government, for the first time ever, began to track murders, assaults, and rapes committed by students ages 10-14 (and since they have been so numerous, these crimes have been tracked individually).  A young male who had attended a local high school in Greenville gunned down a promising young ECU student and a young pizza parlor manager last summer in the downtown area for no other reason other than to express his anger.  Similarly, when religion was taken out of public schools in 1963, teenage pregnancies immediately soared to over 700%.  The United States now boasts the highest teenage pregnancy rate in the industrialized world.  Similarly, sexually transmitted diseases among students began to skyrocket. It has reached the levels that have never been documented in our country before. The reason?  Promiscuous sexual activity among high school students. The removal of religion has been accompanied by the highest crime rate and the greatest decline in morality that this country has ever seen.  But you don’t have to believe me.  You can check with the US Department of Health and Human Services (and state departments), as well as with the Center for Disease Control.

The effects of the Court’s decisions touches some more than others, but one thing is for sure, life today is not as simple and straightforward as it used to be.  Children used to start their day with a prayer or moment of silence to thank their God for the many blessings in their lives and recognize the Golden Rule. They often walked to school because it was in their neighborhood and they plugged away at their studies until they graduated (or joined the military). They ate dinner with their Mom and Dad, shared stories about their day, and again thanked their God for their many blessings.  Their childhoods were happy and wholesome. Many policies are counterintuitive and we often struggle to understand why we must follow them. Then we find out that we have to because the Supreme Court said so and now it’s the law of the land.  Years ago there were traditional roles we filled and our society was ordered and productive.  It’s quite the opposite these days.  I feel sorry for children who have to grow up without proper guidelines and boundaries and without the traditional role models to follow as most of us had when we grew up. I can’t imagine how confused they must be to see traditional boundaries so utterly blurred. How can they possibly know what is right and what is wrong and what is productive and what is not?  It’s almost as if our government and our Court goes out of their way to make it harder for families to raise decent and morally-sound children who can navigate themselves properly through all the social crap that our nation has embraced.  Consider what the Colorado State Board of Education wrote after the horrific shooting at Columbine High by students Eric Harris and Dylan Klebold: “As we seek the why behind this infamous event, we must find answers beyond the easy and obvious. How weapons become used for outlaw purposes is assuredly a relevant issue, yet our society’s real problem is how human behavior sinks to utter and depraved indifference to the sanctity of life. As our country promotes academic literacy, we must promote moral literacy as well…. Our tragedy is but the latest – albeit most terrifying and costly – of a steadily escalating series of schoolhouse horrors that have swept across the nation.  The senseless brutality of those calamities clearly reveals that a dangerous subculture of amoral violence has taken hold among many of our youth….  We must remember, respect, and unashamedly take pride in the fact that our schools, like our country, found their origin and draw their strength from the faith-based morality that is at the heart of our national character.  Today our schools have become so fearful of affirming one religion or one value over another that they have banished them all. In doing so they have abdicated their historic role in the moral formation of youth and thereby alienated themselves from our people’s deep spiritual sensibilities. To leave this disconnection between society and its schools unaddressed is an open invitation to further divisiveness and decline. For the sake of our children, who are so dependent upon a consistent and unified message from the adult world, we must solve these dilemmas…  Perhaps across the ages we can hear the timeless words of Abraham Lincoln, and, applying them to our own circumstance, renew his pledge ‘that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom.’  With history as our judge, let us go forward together with a strong and active faith.”

Going forward please realize that while you can’t vote directly for Supreme Court Justices who will make firm decisions affecting your rights and the rights of future generations, those who you vote for do have that grant of power.  It’s an awesome yet fearsome power.  Our lives are shaped by the freedoms we have and the extent to which we can exercise them.  At this point in our history, whether our rights will be upheld or regulated is a virtual crapshoot.  The President of the United States holds that power in his hand.  We must not give that power to the wrong individual.

As one time Supreme Court nominee Robert Bork warned: “In a constitutional democracy, the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge.”


Christian Legal Society Chapter of the Univ. of Calif., Hastings College of Law, aka, Hastings Christian Fellowship v. Martinez, 561 U. S. __ (2010)  [Fall Term, 2009;  Decided June 28, 2010]

Rosenberger v. University of Virginia, 515 U.S. 819 (1995)

Roberts v. United States Jaycees, 468 U.S. 609 (1984)]

United States v. Schwimmer, 279 U.S. 644, pp. 654–655 (1929)

Healy v. James, 408 U.S. 169 (1972)

Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006)

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

New York Times v. Sullivan, 376 U.S. 254 (1964)

Shelton v. Tucker, 364 U.S. 479 (1960)

Trop v. Dulles, 356 U.S. 86 (1958)  (quoting Chief Justice Earl Warren on the “evolving standards of decency…”)

Zorach v. Clauson, 343 U.S. 306 (1952)  [Justice Douglas states that there must be no hostility to religion]

Abington v. Schempp, 374 U.S. 203 (1963)

Brown v. Board of Education, 347 U.S. 483 (1954)

David Barton, Separation of Church & State: What the Founders Meant, Wallbuilder Press, 2007  [addressing the letter by the Colorado State Board of Education, on pg.16  ]

Lyle Denniston, “Christian Legal Society v. Martinez,”  SCOTUS WIKI (Supreme Court of the US Wiki),

“Politically Correct, Legally Wrong,” The Washington Post, April 19, 2010

Hadley Arkes, “Vast Dangers—Confirmed,”, June 29, 2010

NOTE:  The Alliance Defense Fund assisted in the case for CLS. []

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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1 Response to Constitutional Watch: Christian Legal Society v. Martinez – The Supreme Court Just Doesn’t Get It

  1. In light of the serious consequences that have resulted directly from the removal of religion in our schools and in our society, I wish to propose a possible legal pathway to the re-introduction of religion…… There is a doctrine, called the “Secondary Effects” doctrine, which has been applied in cases related to land-use regulation, in particular to those cases involving the adult entertainment business. This doctrine provides that land-use (zoning) laws and regulations are held to a lower form of judicial review if their primary purpose is to ameliorate the adverse “secondary effects” allegedly associated with certain offensive or controversial speech, rather than to suppress the offending speech itself. With respect to the adult entertainment business, such as nude dancing establishments or stores selling sexual items and material, such “secondary effects” include decreased property values, increased crime, prostitution, confusion and harm to children, loss of residential privacy, security problems, appearances of impropriety, needless sexual arousal, and traffic congestion. I believe we should apply the “Secondary Effects” doctrine to ameliorate the adverse “secondary effects” that result from the removal of religion from our schools and public life. After all, it has already been applied to restrict commercial speech and political speech. Furthermore, in 2000, a federal judge in Kentucky recently used the secondary-effects rationale to uphold the constitutionality of a public high school dress code, determining that the code was really aimed at the “secondary effects of student dress,” such as gang activity, violence and inability to identify campus visitors (Long v. Board of Education of Jefferson County).

    The spirit of the First Amendment as envisioned was to protect religious speech and to promote the free exchange of political speech into the “marketplace of ideas.” Justice Oliver Wendell Holmes introduced this basic cornerstone of First Amendment jurisprudence in his dissent in the 1919 case of Abrams v. United States (which upheld the Constitutionality of the Espionage Act) when he wrote that society’s ultimate good “is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” But jurisprudence has developed to include a wide range of speech that is equally protected under the First Amendment, including types we in general find offensive and believe have no inherent communication value. Aside from political and religious speech, the First Amendment protects certain forms of expressive conduct (including the burning of our flag, wearing armbands containing a peace sign or even a swastika), visual works, symbolic expression, works of art (including the piece where Mother Mary is covered with elephant dung), music, movies and other forms of entertainment, commercial speech and advertising (although with slightly less protection), sexual expression, nude dancing, and pornography. Speech that is not protected includes: Obscenity (material, which “as a whole, appeals to a prurient interest in sex, patently offends community standards, and is utterly without redeeming social value,” Roth v. U.S. and Miller v. California), fighting words, defamation (libel and slander), child pornography, but not regular pornography), incitement to imminent lawless action, true threats, perjury, treasonous statements, blackmail, solicitation to commit crimes, and plagiarism of copyrighted material.

    Over the years, municipalities have attempted to respond to the introduction and proliferation of nude-dancing establishments by using their inherent zoning powers to frustrate the industry’s expansion. City officials have argued that zoning restrictions are a reasonable means of land-use regulation designed to meet the needs of the locality. Many years ago, however, zoning powers could only be used to regulate adult businesses geographically – that is, to disperse the adult businesses to locations throughout the city or to relegate them to a certain area. For example, many ordinances prohibited adult businesses from locating within a certain distance from churches, schools or from other adult businesses. Other ordinances confined adult businesses to certain zoning areas, thereby ensuring that such businesses would not open in residential or other areas. Eventually, this led to judicial creation of the “secondary-effects” doctrine, which allows government officials greater leeway to regulate nude dancing and other forms of adult entertainment if they can show they are combating the allegedly harmful side effects (secondary effects) of such businesses. While these businesses have criticized the doctrine as a path to censorship, the Supreme Court has repeatedly upheld the doctrine (as long as the consideration of harmful effects is done seriously and contemporaneously with the regulation and not as an afterthought).

    The “secondary effects” doctrine entered First Amendment jurisprudence in 1976 (although many call it a “legal “fiction” since it actually stands against principles of first amendment protection) with the case of Young v. American Mini Theatres. At issue was an ordinance, the “Anti-Skid Row Ordinance,” which the zoning board amended to provide zoning limitations for adult businesses. The ordinance provided that no adult business could be located within 1,000 feet of any two existing adult businesses or within 500 feet of any residential area. The theater that challenged the law contended that the zoning ordinance was a content-based law that targeted businesses because officials did not like the expressive messages conveyed by the adult material displayed there. The Supreme Court reasoned that the law was not passed to silence offensive expression but rather was passed to prevent the deterioration of the neighborhood. Justice Stevens characterized such neighborhood deterioration when he wrote: “The Common Council’s determination was that a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of “offensive speech.” Years later, in Renton v. Playtime Theatres, the Supreme Court stated: “To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters…. However, the Renton ordinance is aimed not at the content of the films shown at adult motion picture theaters, but rather at the secondary effects of such theaters in the surrounding community.” Justice David Souter, who recently resigned from the Supreme Court, was one of the most aggressive members of the Court in applying that doctrine.

    In my review of the recent Supreme Court’s religious expression decision (Christian Legal Society v. Martinez, July 28, 2010), entitled “Christian Legal Society v. Martinez – The Supreme Court Just Doesn’t Get It,” I wrote how the removal of prayer and religion from schools had very real and measureable consequences on our youth and on our society. I hinted that it has led to a gradual decline in the values that sustain healthy and productive communities and that guide our youth to accepting productive roles in our society. For example, as I pointed out, when the Supreme Court ordered that religion be taken out of our public schools in 1963, violent crime increased 700% and teenage pregnancies immediately soared to over 700%. The removal of religion has been accompanied by the highest crime rate and the greatest decline in morality that this country has ever seen. I would say these are very alarming and very serious “secondary effects.” I also believe that the removal of any thoughtful reminder of Providence’s blessings in our public life and in our government has resulted in a lack of respect for the institutions created by our Founding Fathers and the principles on which they were designed, an increase in abuse of power, and a moral depravity the likes of which we have never seen before. I would argue that the deterioration following the removal of religion and it’s teachings from our schools, public life, and our government can be legally addressed by applying this doctrine. For those who will claim the “Wall of Separation” between Church and State (another legal fiction as applied by the Supreme Court), the “secondary effects” doctrine would not negate that holding. It would simply state that the interest in our country in fighting the negative effects that comes from a lack of religious recognition outweigh the strict Constitutional scrutiny that usually applies to issues of religion and government/state conduct. Another “secondary effect” of removing religion is the gradual national denial of the basis of our nation on God and Christian values. As our very Declaration of Independence declares to the world: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”… where “self-evident” means “requiring no proof or explanation”; it is the assumption upon which all else follows). We cannot secure our fundamental liberties in the future without the national acknowledgement of a Creator. Without that nexus, the understanding that our government is created to protect our fundamental liberties falls apart, and instead, the government becomes one that is created to regulate our liberties for the benefit of the nation.

    In 1988, Supreme Court Justice William Brennan warned that the secondary-effects doctrine could lead to an “evisceration of First Amendment freedoms.” In his dissent in Boos v. Berry, he cautioned that the use of the doctrine as a cure-all “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” The decision in Everson v. Board of Education (1947) which began the removal of religion from our schools when it held that there is a “Wall of Separation between Church and State” that is “high and impregnable” has also eviscerated First Amendment freedoms. They say two wrongs don’t make a right. Well, maybe in this case, it will. And it might just be a good start.

    Abrams v. U.S., 250 U.S. 616 (1919)
    Long v. Board of Education of Jefferson County (2000)
    Roth v. U.S., 354 U.S. 476 (1957)
    Miller v. California, 413 U.S. 15 (1973); [legal test outlined on pg. 24]
    Young v. American Mini Theatres, 47 U.S., 50 (1976)
    Renton v. Playtime Theatres, 475 U.S. 41 (1986)
    Boos v. Berry, 485 U.S. 312 (1987)
    Everson v. Board of Education, 330 U.S. 1 (1947) [this is the landmark decision which applied the religious clauses of the First Amendment to the government as well as the states and began the gradual removal of religion from public life. This decision also singlehandedly resulted in the rise of the ACLU and empowered anti-religious groups to set us on a course to publicly deny or remain silent on our religious heritage].

    Further understanding of the “Secondary Effects” Doctrine – David L. Hudson, Jr., “The secondary effects doctrine: The evisceration of First Amendment freedoms,” 37 Washburn L.J. 55, 77-78 (1997).


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