The loss of freedom of association in Christian Legal Society v. Martinez.

• Author: Willems, Jack

Our First Amendment rights are bedrock principles of our nation's constitutional structure. (1) Because public universities and schools are operated by the state, "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) The Supreme Court has also said that the First Amendment freedom of association guarantee includes a right for groups to set membership standards. (3) In a limited public forum, however, the state may impose reasonable restrictions on speakers and content so long as the restrictions are viewpoint neutral and reasonable. (4) Last term, in Christian Legal Society v. Martinez (CLS), (5) the Court held that, as conditions for recognition as a registered student organization (RSO), a public university may require a Christian group to accept as members non-Christians and individuals who engage in homosexual conduct. (6) Because an organization that cannot control its membership cannot control its message, the state discriminates against the content of such an organization's message when it attempts to control the organization's membership requirements as a condition for entrance into a limited public forum. Applying an all-comers rule does not cure this defect because such a rule discriminates against the viewpoint that membership criteria is part of the message. (7) Such a policy is invalid, not only because it discriminates against a particular viewpoint, but also because it discriminates against a viewpoint that is specifically and uniquely protected by the First Amendment's freedom of association. The Court's opinion in CLS dramatically undercuts the freedom of association. The Court unjustifiably departed from precedent and merged the speech and association rights of the Christian Legal Society (CLS).

Hastings College of the Law requires student groups desiring financial assistance from the law school and access to school channels of communication and facilities to become RSOs. (8) To become an RSO, an organization must abide by Hastings's nondiscrimination policy, which the school interprets to mean that student organizations must accept any student who wishes to be a member. (9) In 2004, a preexisting student organization at Hastings became affiliated with a national group, the CLS. The national CLS requires that members of local chapters sign a statement of faith confirming their belief in the tenets of Christianity and a pledge to not participate in sexual relations outside of heterosexual marriage, (10) When CLS submitted its application for RSO status, the law school rejected the application. The school explained that, by barring students based on religion and sexual orientation, CLS was not in compliance with the school's nondiscrimination policy. (11) CLS filed suit against various law school officers and administrators alleging that the school's refusal to grant RSO status to CLS violated its rights to free speech, expressive association, and free exercise of religion. (12) The district court granted the law school summary judgment, finding the law school's policy both reasonable and viewpoint neutral (13) On appeal, the Ninth Circuit affirmed the district court in a short, unpublished decision. (14)

The Supreme Court affirmed. (15) Writing for the Court, Justice Ginsburg first rejected CLS's request to consider the nondiscrimination policy as written, rather than as interpreted by the law school, because CLS had stipulated at the summary judgment stage that the school's policy was an all-comers policy. (16) Litigants are entitled to have their case tried upon the assumption that stipulated facts have been established, Justice Ginsburg said, and CLS therefore could not escape from the consequences of its stipulation. (17)

CLS argued that Hastings's policy violated both CLS's freedom of speech and freedom of association. Applying the Court's limited public forum precedents to the freedom of speech claim, Justice Ginsburg stated that any restriction on access to such a forum "must be reasonable and viewpoint neutral." (18) Justice Ginsburg acknowledged another line of Supreme Court precedent under which restrictions on the freedom of association must meet a test much more rigorous than limited public forum analysis. (19) Restrictions on association are only permitted if they serve compelling state interests unrelated to the suppression of ideas and if they are narrowly tailored to achieve those interests. (20) But according to Justice Ginsburg, CLS's expressive association argument and free speech argument merge because "[w]ho speaks on [an organization's] behalf ... colors what concept is conveyed." (21) The case should be considered solely under the Court's limited public forum precedents, Justice Ginsburg reasoned, because employing the stricter freedom of association test would render the Court's limited public forum test for speech inconsequential whenever there is an intertwined freedom of association claim. (22)

Justice Ginsburg began her analysis under the limited public forum standard by evaluating whether Hastings's policy was rationally related to a legitimate public purpose. She noted that although the Court owed no deference to universities on this question, it had previously cautioned against the substitution of judges' own notions of sound policy for those of educators. (23) Justice Ginsburg went on to recite the interests asserted by the law school in maintaining the policy: ensuring that all students have equal access to the opportunities provided in the RSO program; making it easier to police the written terms of the nondiscrimination policy; encouraging tolerance, cooperation, and learning among students; and avoiding subsidizing conduct of which the State of California disapproves. (24) In balancing those interests with any burden to CLS created by the nondiscrimination policy, Justice Ginsburg asserted that CLS was not significantly burdened because non-RSO means of communication remain available to CLS. (25) She also dismissed the concern, voiced by both CLS and the dissenters, that potential saboteurs might attempt hostile takeovers of groups under the all-comers policy, pointing out that RSOs could still condition membership on neutral requirements like attendance or the payment of dues and asserting that these powers would thwart such a takeover. (26) Furthermore, the school would likely revisit its policy if hostile takeovers actually became a problem. (27)

Justice Ginsburg then considered whether the all-comers policy was viewpoint neutral. Although she recognized that the all-comers policy could incidentally burden groups whose viewpoints were outside the mainstream, she concluded that the rule was still viewpoint neutral because it "serve[d] purposes unrelated to the content of expression," (28) and "aim[ed] at the act of rejecting would-be group members without reference to the reasons motivating that behavior." (29) The policy thus withstood challenge under the First Amendment, though the Court remanded the case for further proceedings to determine the viability of CLS's claim of pretext. (30)

In a concurring opinion addressing the dissent's argument that the nondiscrimination policy was plainly unconstitutional, Justice Stevens asserted that, although the First Amendment may protect CLS's membership practices off campus, "it does not require a public university to validate or support them." (31) He argued that Hastings's all-comers policy singled out discriminatory conduct, not belief. (32) He emphasized that the proprietor of a limited public forum has the right to establish the boundaries of that forum. (33) As a general matter, Justice Stevens added, the university should be given room to manage its own affairs. (34) Although the law school must treat...