Duck, Duck, Goose . . . Because You're Christian: an Analysis of Selective Enforcement and Viewpoint Discrimination in a Limited Public Forum in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 586. Duck, Duck, Goose . . . Because You're Christian: An Analysis of Selective Enforcement and Viewpoint Discrimination in a Limited Public Forum in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)

Duck, Duck, Goose . . . Because You're Christian: An Analysis of Selective Enforcement and Viewpoint Discrimination in a Limited Public Forum in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 587

II. Background ........................................... 588
A. Forum Analysis: A Brief Explanation .............. 588
1. Healy v. James: Political Viewpoint Discrimination Against a Student Group ....... 590
2. Lamb's Chapel v. Center Moriches Union Free School District: Speech Otherwise Permitted . . . 592
3. Rosenberger v. Rector and Visitors of the University of Virginia: Religious Viewpoint Discrimination at a Public University .......... 593
4. Good News Club v. Milford Central School: Viewpoint Discrimination and Reasonableness. . 595

III. Christian Legal Society v. Martinez: Facts, Holding, and Reasoning ............................................ 597
A. The Registered Student Organization Program ..... 597
B. Procedural History ................................ 598
C. Majority Opinion: An Invitation to Examine Selective Enforcement ............................. 599

1

IV. Analysis .............................................. 600
A. The Standard ..................................... 600
1. CLS's Language Permitted in the Limited Public Forum ......................................... 601
2. Hastings's Selective Enforcement and Viewpoint Discrimination ................................. 602
B. Counter Arguments ............................... 605
1. Discriminating on the Basis of Sexual Orientation .................................... 606
2. The Not-So-Compelling Government Interest . . . 607

V. Conclusion ............................................ 608

VI. Update ............................................... 609

I. INTRODUCTION

The proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."(fn1) 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.(fn2)

In a line of Supreme Court cases concerning restrictions on speech in a limited public forum the Court holds that "any access barrier" must be both reasonable and viewpoint neutral.(fn3) In April 2010, the stipulated "all-comers policy" in place at the University of California, Hastings College of Law (Hastings) survived a facial challenge to this test. The Court held Hastings's open-access condition on Registered Student Organization (RSO) status was both reasonable in light of the purposes of the limited public forum and viewpoint neutral.(fn4) The student branch of the Christian Legal Society (CLS) at Hastings was thus denied RSO status because it refused to admit members unless they were willing to affirm their belief in certain Christian doctrines and refrain from "participation in or advocacy of a sexually immoral lifestyle."(fn5)

While on its face the all-comers policy withstood a constitutional challenge, on remand the lower courts should examine the question of

2

whether the policy was applied unconstitutionally.(fn6) Hastings selectively enforced its policy against CLS while allowing other RSOs similarly situated to limit membership and leadership positions to those students who "agree[d] with the organization's beliefs and purposes."(fn7) Because Hastings's policy was selectively enforced any reason put forth by Hastings to justify its policy should be labeled defunct.(fn8) The purpose of this Note is to demonstrate that, while the policy in question may have appeared textually both reasonable and viewpoint neutral, it was applied in such a way that amounted to viewpoint discrimination and violated the CLS's First Amendment right to expressive association.

Part II of this Note will set the judicial foundation governing First Amendment expressive association rights in a limited public forum, such as the one created at Hastings. Part III will present the relevant facts, holding, and reasoning of the Supreme Court in its decision to uphold the all-comers policy. Part IV will analyze the policy as the university applied it. When juxtaposed with Supreme Court precedent governing viewpoint discrimination against religious perspectives, Hastings's actions should prove unconstitutional. Furthermore, the court on remand, when examining the reasonableness of the policy as applied, will likely be persuaded that the policy does not pass the reasonableness standard. Finally, Part V will present possible conclusions, including forcing Hastings to: (1) grant CLS an exemption from the all-comers policy or (2) to apply the policy to all RSOs equally.

II. BACKGROUND

A. Forum Analysis: A Brief Explanation

The Constitution of the United States of America guarantees: "Congress shall make no law . . . abridging the freedom of speech."(fn9) The right to associate for the purpose of engaging in the expression of a certain idea is included under this provision of the First Amendment.(fn10) This guarantee however, is not without limitation. For example,

3

in the interest of both public and private safety, a speaker is not permitted to yell, "FIRE!" in a crowded theatre.(fn11) A group is restricted from sending death threats to the President of the United States.(fn12) While these restrictions may seem obvious, the Supreme Court has also created standards for evaluating limitations placed on one's First Amendment rights "depending on the character" of the setting (or forum) where the speech takes place.(fn13) Put another way, "the extent to which the Government can control access [to a forum] depends on the nature of the relevant forum."(fn14) This "forum analysis" has divided government property into three categories: (1) traditional public forums-e.g., sidewalks and parks;(fn15) (2) government designated public forums-where "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose;"(fn16) and (3) limited public forums-a forum created by a government entity that is to be used "by certain groups or dedicated solely to the discussion of certain subjects."(fn17)

The standard used to determine if "a state has unconstitutionally excluded a private speaker from use of a public forum depend[s] on the nature of the forum."(fn18) While the judiciary has granted discretionary power for the government "to preserve [its] property under its control for the use to which it is lawfully dedicated,"(fn19) this power is reined in under the doctrine of scrutiny. For example, any content-based restrictions placed on speech in the traditional public forum or the government designated public forum are subject to strict scrutiny-"the restriction must be narrowly tailored to serve a compelling governmental

4

interest."(fn20) The level of scrutiny in the limited public forum however, is more relaxed-a government entity may impose restrictions on speech that are reasonable and viewpoint neutral.(fn21) Because the RSO program at Hastings represented a limited public forum it is imperative for the reader to have an understanding of the standard used when evaluating speech in this forum. The Supreme Court noted:

When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified in "reserving [its forum] for certain groups or for the discussion of certain topics." The State's power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be "reasonable in light of the purposes served by the forum."(fn22)

What constitutes viewpoint discrimination and unreasonableness in a limited public forum has been examined at great length in recent Supreme Court decisions.(fn23)

1. Healy v. James: Political Viewpoint Discrimination Against a Student Group

In 1972, a group of students attending Central Connecticut State College desired to receive official recognition as a student group in order to establish a local chapter of Students for a Democratic Society (SDS).(fn24) The students filed a request with the student affairs committee and stated three purposes of the group:

[1]provide "a forum of discussion and self education for students developing an analysis of American society";[2] serve as "an agency for integrating thought with action so as to bring about constructive changes"; and . . . [3] "provide a coordinating body for relating the problems of leftists students" with other interested groups on campus and in the community.(fn25)

5

The reviewing committee took no issue with the group's proposed purposes but concerned itself with the relationship between the student group and the National SDS organization.(fn26) The national branches for SDS carried with them a reputation for campus disruption.(fn27) Once established that the student group was loosely, if at all, connected with the national organization, the committee approved the...