The Need for Religious Groups to Be Exempt from the Diversity Policies of Universities in Light of Christian Legal Society v. Martinez

• Author: Michael R. Denton
• Pages: 1055-1094

The Need for Religious Groups to Be Exempt from

the Diversity Policies of Universities in Light of

Christian Legal Society v. Martinez

INTRODUCTION

“This is an environment of welcoming, so you should just get

the hell out.”1

The irony of the above statement is obvious. It is a tragedy,

then, that the humor appears to have been lost on the Supreme

Court of the United States. Now, a state law school’s policy that,

under the guise of welcoming all comers, has told religious groups

to effectively “get the hell out” has been given constitutional

blessing.2

The case arose when a group of Christian students sought

recognition at the University of California, Hastings College of the

Law (Hastings).3 The group they wished to organize, the Christian

Legal Society (CLS), would require all members and officers to

affirm certain tenets of the Christian faith, as well as abstain from

sexual conduct outside of marriage.4 This requirement meant that

all homosexual activity was prohibited for CLS members and

officers.5 Hastings, finding that these requirements violated its

policy prohibiting students from discriminating on any basis,

denied the group recognition.6 The CLS sued Hastings, arguing

that the denial impaired the constitutional rights of the students to

free speech, expressive association, and free exercise of religion.7

By a 5–4 majority, the Court ruled in favor of Hastings, finding

that the “all-comers” policy Hastings had in place was content-

neutral and that the burdens on students resulting from the need to

organize without official school recognition were not overly

burdensome.8

Although it is debatable how far-reaching the effects of this

decision will be, the Court’s reasoning puts many collegiate

religious groups in jeopardy of being denied recognition by their

universities. By placing religious groups in such a position, the

Supreme Court has unwisely endangered the nature of a university

Copyright 2012, by MICHAEL R. DENTON.

1. The Office: Diversity Day (NBC television broadcast Mar. 29, 2005).

2. Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2978 (2010).

3. Id. at 2980.

4. Id.

5. Id.

6. Id. at 2981.

7. Id.

8. Id.

1056 LOUISIANA LAW REVIEW [Vol. 72

as a marketplace of ideas.9 In order to counteract these harms, the

Supreme Court should overturn Martinez and allow religious

groups to be exempt from the diversity policies of universities.

Alternatively, state legislatures should be proactive and amend the

diversity policies of state universities to allow student groups

formed around the viewpoints of comprehensive religions to be

exempt from such policies.10

This Comment is divided into four parts. Part I sets forth two

lines of jurisprudence relevant to the Martinez decision: (1) the

right of groups not to associate with particular persons, and (2) the

rules regarding limited public fora. Part I also analyzes a factually

similar case decided before Martinez that addressed a

nondiscrimination policy using these lines of jurisprudence. In Part

II, this Comment examines the reasoning of the Martinez majority,

concurring, and dissenting opinions. Part III argues the Martinez

Court erred by failing to apply analogous precedents in the

jurisprudence regarding traditional public fora, by considering

Hastings’s policy to be viewpoint neutral, and by failing to provide

protection for student groups with minority viewpoints. Finally, in

Part IV, this Comment argues that religious groups are so

important to university life that reasons of law and policy

necessitate that either the Court or state legislatures act in order to

preserve the existence of religious groups on college campuses.

This Comment demonstrates that universities achieve authentic

diversity through the protection of student religious groups.

I. THE JURISPRUDENCE BEFORE MARTINEZ REGAR DING THE

RELEVANT RIGHTS OF STUDENTS

Associations, particularly those on college campuses, had

enjoyed favorable treatment from the Supreme Court in the

jurisprudence leading up to Martinez. The Court had been protective

of the right to associate and had allowed some groups to exclude

members with opposing viewpoints.11 Attempts by colleges to

exclude groups, particularly religious ones, from campuses were

constitutionally disfavored.12 With this background, the Seventh

Circuit found that a state school’s attempt to deny recognition to a

CLS chapter based on a nondiscrimination policy was

9. See infra Part IV.

10. Because the Martinez opinion relies on a distinction between “all-

comers” policies and nondiscrimination policies, this Comment uses “diversity

policies” as an umbrella term to refer to both types of policies.

11. See infra Part I.A.

12. See infra Part I.B.

2012] COMMENT 1057

unconstitutional.13 In order to determine what impact Martinez may

have on the rights of students to form religious groups, it is

necessary to first examine this background.

A. The Rights of Association and Non-Association

The Supreme Court has held that the freedom to associate has a

“close nexus” to the freedom of speech in that effective advocacy

of a viewpoint, including a religious one, is “undeniably enhanced

by group association.”14 An implicit and necessary element of the

freedom to associate is the freedom not to associate.15 This

freedom is included in the “liberty” granted through the Due

Process Clause of the Fourteenth Amendment.16

This right of “disassociation” is not absolute. In a line of cases,

the Court has examined the right of groups to limit membership on

the basis of sex. The seminal case in this line is Roberts v. U.S.

Jaycees.17 In Roberts, a national civic organization for young men,

the Jaycees, attempted to justify a policy limiting membership to

males in spite of Minnesota’s Human Rights Act, which prohibited

discriminatory practices based on sex.18 The Court upheld

Minnesota’s act based on several factors. First, the Jaycees were a

“large and basically unselective group.”19 Other than age and sex,

there were no other requirements for members.20 This kind of

broad structure lacked the “small and selective” nature the Court

found necessary to merit constitutional protection from sexual

discrimination prohibitions.21 Second, the Court emphasized that

the admission of women did not appear to threaten any alteration

of the Jaycees’ viewpoints, noting that the Jaycees had already

allowed women to participate in many Jaycee activities.22 This

13. Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006).

14. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Thus,

infringement upon one’s right to freely associate may also infringe upon one’s

right to freely speak when the association is meant to pro mote a viewpoint. Id.

15. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).

16. Patterson, 357 U.S. at 460.

17. This line also includes Board of Directors of Rotary International v.

Rotary Club of Duarte, 481 U.S. 537 (1987), and New York State Club

Association v. City of New York, 487 U.S. 1 (1988). See Mark Andrew Snider,

Note, Viewpoint Discrimination by Public Universities: Student Religious

Organizations and Violations of University Nondiscrimination Policies, 61

WASH. & LEE L. REV. 841, 858–60 (2004).

18. Roberts, 468 U.S. at 612.

19. Id. at 621.

20. Id.

21. Id.

22. Id. at 627.