SC Lawyer, September 2010, #1. Christian Legal Society v. Martinez and Religious Freedom in South Carolina Public Schools and Universities.

• Author: By Jay Thompson

South Carolina Lawyer

2010.

SC Lawyer, September 2010, #1.

Christian Legal Society v. Martinez and Religious Freedom in South Carolina Public Schools and Universities

South Carolina LawyerSeptember 2010Christian Legal Society v. Martinez and Religious Freedom in South Carolina Public Schools and UniversitiesBy Jay Thompson Just in time for students returning to school this fall, the U.S. Supreme Court at the end of its most recent term issued a ruling in a First Amendment, religious viewpoint discrimination case involving a religious student organization. At almost the same time, South Carolina enacted the Religious Viewpoints Antidiscrimination Act, which protects a student's right to express religious viewpoints and organize religious activities and groups. These new developments, combined with existing South Carolina law, continue to protect a student's fundamental right to free association and free expression of religious viewpoints in South Carolina public schools and universities.

Christian Legal Society v. Martinez

The Christian Legal Society v. Martinez case surprised many observers by narrowly upholding a unique "all-comers" non-discrimination policy at a California public law school, finding the policy allows the school to reject a Christian student organization that requires its leaders and members to be Christians. No. 08-1371, 2010 WL 2555187 (U.S. June 28, 2010). Despite its holding, however, the sharply divided 5-4 decision turned out to be limited in scope and application to the unique policy at issue, which the Christian Legal Society (CLS) has described as the only one of its kind in the country.

The case stemmed from the decision of the University of California Hastings College of the Law (Hastings) to deny recognition as a Registered Student Organization (RSO) to the local student chapter of CLS. Hastings denied RSO status to CLS because, while the group permitted any student to participate in its events, it required its members and officers to affirm a statement of faith, part of which says that Biblical standards prohibit "all acts of sexual conduct outside of God's design for marriage between one man and one woman [including] fornication, adultery, and homosexual conduct."

Hastings is a publicly funded university in San Francisco, California. It adopted a nondiscrimination policy in 1990, which prohibited the school from "discriminat[ing] unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." It also established policies by which student groups and organizations could be officially registered with the school and receive limited funding and benefits, including priority access to facilities and office space, the opportunity to publish in school newsletters, access to school communication channels, and the ability to participate in the annual student organizations fair.

Prior to the 2004-05 school year, Hastings had an RSO called "Hastings Christian Legal Society." In 2004 the students in this RSO affiliated with the national CLS organization, and, for the first time, the student members and officers were required to affirm the CLS Statement of Faith. The leading decision on the issue held that a non-discrimination policy may not be applied to restrict access by religious groups who require a statement of faith from members. See, e.g., Christian Legal Society v. Walker,453 F.3d 853 (7th Cir. 2006). As applied to CLS, Hastings' nondiscrimination policy, which attempted to regulate student organizations according to their viewpoints, would have forced the chapter to have voting members and officers who held beliefs and engaged in conduct contrary to the CLS Statement of Faith. Therefore, the CLS chapter asked Hastings to exempt this group and other religious student organizations from the religion and sexual orientation portions of the nondiscrimination policy. In response, Hastings denied CLS's request to be registered as a student organization because of its membership policy, refusing to grant recognition and the benefits of recognition as an RSO.

CLS filed a federal court complaint against Hastings under 42 U.S.C. § 1983, arguing Hastings' policy violated CLS's constitutional rights to free speech, free...