AuthorHill, B. Jessie
PositionTaking Stock of the Religion Clauses

INTRODUCTION I. DEFINING HOSTILE TAKEOVER A. CLS v. Martinez B. Hostile Takeover Outside of CLS 1. Other Religion Clauses Contexts 2. Secular Voluntary Associations C. Identifying When Hostile Takeover Is Occurring II. WHAT IS THE ROLE OF THE STATE? CONCLUSION INTRODUCTION

Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a "hostile takeover" of the Republican Party. (1) What was meant by this claim, it appears, is that Trump had replaced the Grand Old Party's commitment to free markets, balanced budgets, and low taxes with promises of "universal health-care, tax hikes on hedge-fund managers, and a $1 trillion infrastructure plan." (2) And rather than finding himself a dissenter within a party that rejected his views, Trump instead skyrocketed to the top of the party, which accordingly transformed itself to accommodate him. Whether this appraisal is accurate or not, (3) it reflects concern about the associational integrity of a voluntary private organization--the Republican Party--and it suggests that some forms of organizational transformation could be problematic.

The same concern might arise regarding other private associations, including religious associations. Of course, all organizations undergo change. Notwithstanding stereotypical assumptions about religious organizations as ossified and impermeable to change, reform and transformation are endemic to religious communities, which inevitably partake in "an ongoing, dynamic relationship with the realities of everyday life." (4) Often, change occurs because of external events or pressures, which lead to internal disputes and, perhaps, the organization adopting new leadership and new values. For example, debates over pressing social issues such as slavery in the nineteenth century and same-sex marriage in the twenty-first century have permeated religious communities, leading ultimately to changed beliefs and sometimes schisms within congregations. (5) Given that some transformation is inevitable and universal within religious and other voluntary organizations, it would be unwarranted to assume that all change within a religious organization that touches on the structure or teachings of that religion is necessarily problematic.

Moreover, it might appear at first glance that outsiders to those organizations--including the government--have no interest in either encouraging or discouraging such change. But perhaps the matter is not so simple. In fact, several constitutional doctrines appear to be aimed at protecting against some forms of organizational transformation, particularly for religious organizations. Yet, courts applying those doctrines rarely ask some of the difficult questions underlying this concern for associational integrity. For example, when does organizational transformation constitute a "hostile takeover"? And why, exactly, is this form of transformation a cause for concern?

This Article aims to grapple with these difficult questions about the meaning of hostile takeover, as well as about whether the state should care about it--that is, whether the state should ever act either to prevent or to encourage hostile takeover. Part I of this Article attempts to define hostile takeover in the context of religious organizations and compares it to the concept of hostile takeover in some secular contexts. Part II then considers what the position of the state should be vis-a-vis hostile takeover of religious organizations. This Article ultimately concludes that the state has only a very limited interest in either the facilitation or the prevention of hostile takeover.


    The first task of this paper is to define the concept of "hostile takeover." As explained in Part I.A., the term "hostile takeover" was first used by the Supreme Court in the context of religious organizations in the 2010 case Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez. (6) While that case dealt primarily with freedom of speech and association, rather than religious freedom, I argue in Part LB. that the concept of hostile takeover plays a broader role in both Free Exercise Clause and Establishment Clause doctrines, as well as in other First Amendment contexts. Finally, Part EC. highlights some fundamental questions about the scope and meaning of hostile takeover.

    1. CLS v. Martinez

      The U.S. Supreme Court introduced the concept of "hostile takeover" in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, which involved a challenge by a student chapter of the national organization Christian Legal Society (CLS) to a public law school's nondiscrimination policy requiring Registered Student Organizations (RSOs), which enjoyed certain benefits from the university, to accept any student who wished to join as a member or seek a leadership position within the organization. (7) This condition posed a problem for CLS, because it embraced very specific views about marriage and sexuality, including a belief that homosexuality was immoral. (8) Because the organization's rules required members to sign an affirmation of faith and excluded those who engaged in "unrepentant homosexual conduct," it could not comply with the so-called "all-comers" policy and was consequently excluded from the benefits of being an RSO (although it was still permitted to operate and use some of the school's resources). (9) While continuing to function outside of the RSO system, CLS also brought suit against the University of California, Hastings College of the Law, claiming that the school's enforcement of the policy against it violated CLS's rights of free speech, expressive association, and religious free exercise. (10)

      In the U.S. Supreme Court, the case revolved primarily around CLS's free-speech claim, which the Court ultimately rejected. The Court found that the law school's RSO program constituted a "limited public forum" for speech. (11) As such, the Court held that the law school's policy only had to be reasonable and viewpoint neutral in order to be constitutional. (12) The Court found that the policy met both requirements. (13) It then made quick work of CLS's other two claims. The Court first subsumed the expressive-association claim under the free-speech claim. (14) Then, almost in passing, it dismissed the free-exercise claim because, under Employment Division v. Smith, the policy was neutral and generally applicable and therefore constitutional. (15)

      Because CLS involved the student organization context and the issue of what sort of support or recognition from the law school CLS would receive, Hastings's policy was subject to a lower level of scrutiny than the Court would have applied to governmental interference with a freestanding association. In other words, in CLS v. Martinez, the student organization was seeking financial and other forms of support from the law school, which gave the law school greater control over its policies. (16) The decision in CLS should not, therefore, be taken to mean that the state would be similarly free to impose a comparable membership policy on religious groups outside of school walls. (17)

      The concern about hostile takeover was raised by CLS in its principal brief. As CLS explained, the all-comers rule burdened its ability to "control and present its message," because it could not prevent students who oppose that message from joining the group and diluting or undermining that message publicly. (18) "If non-Christians could walk in and insist on taking a turn leading one of CLS's weekly studies of the Bible--a book whose interpretation is not free from controversy," CLS explained, "those meetings would cease to be an expression of CLS's beliefs...." (19) The majority opinion in CLS largely dismissed this possibility as "more hypothetical than real," noting that there had been no "history or prospect of RSO hijackings at" the law school. (20) Justice Kennedy, who concurred, similarly noted that there was no evidence of such a phenomenon, but he suggested that this would be a different case--a "substantial" one--if the policy were "either designed or used to infiltrate the group or challenge its leadership in order to stifle its views," or if the all-comers policy had the "purpose or effect" of facilitating such takeover. (21) CLS, however, argued that because of the all-comers policy,

      [e]ither no outsiders will join CLS, in which case the College's Policy is essentially symbolic and does not serve any concrete legitimate purpose, or the opposite: Heterodox or hostile students will join and seek to assume leadership positions, in which case CLS's message will be distorted, and quite possibly sabotaged. (22) Justice Alito's dissent took CLS's suggestion far more seriously, while acknowledging that it was not his primary concern. (23) Specifically, Justice Alito worried that "[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," presumably because larger groups, which are by definition more popular, would be harder for a small group of committed antagonists to dominate. (24) He also criticized Justice Kennedy's caveat as incoherent and difficult to apply: "The Court holds that the accept-all-comers policy is viewpoint neutral and reasonable in light of the purposes of the RSO forum. How could those characteristics be altered by a change in the membership of one of the forum's registered groups? No explanation is apparent." (25) In other words, according to Justice Alito, the imagined change in membership does not make the all-comers policy any less viewpoint-neutral, and it does not make it any less reasonable in relation to the purposes of the limited public form. (26)

      Justice Alito also acknowledged that hostile takeover will not necessarily be self-evident from the...

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