‘Christian Legal Society v. Martinez:’ Frequently Asked Questions

By August 30, 2010

“What were the facts in Christian Legal Society v. Martinez? How did the case reach the Supreme Court?”

“What did the Supreme Court decide in CLS v. Martinez?”

“What does FIRE think of the Court’s decision?”

“This is a case about student groups. What does CLS v. Martinez have to do with free speech?”

“How does FIRE think CLS v. Martinez will impact speech on campus?”

“Does FIRE support public funding or subsidies for discrimination on campus?”

“I’m a student leader of a student group at a public college. How will CLS v. Martinez affect my organization?”

“I’m an administrator with oversight of student organizations at a public college. How does CLS v. Martinez change the way my institution may regulate student organizations?”

“I’m a FIRE supporter. How will FIRE respond to the Court’s ruling?”

“I care about freedom of association on college campuses. Is there anything I can do to help?”

Where can I read more about FIRE’s assessment of CLS v. Martinez?”

 

“What were the facts in Christian Legal Society v. Martinez? How did the case reach the Supreme Court?”

Christian Legal Society v. Martinez arose after the University of California Hastings College of the Law denied official recognition to a Christian student group, the Christian Legal Society (CLS).

The case began during the 2004-2005 academic year, when the Hastings chapter of CLS applied to become a Registered Student Organization (RSO), a status that would allow the group to use university facilities and university e-mail systems, and to become eligible for funding to host speakers and to travel. Consistent with national CLS policy, Hastings’ CLS chapter required students who wanted to be voting members or leaders of the organization to sign a Statement of Faith outlining CLS’ particular understanding of Christian doctrine. With regard to “biblical principles of sexual morality,” the Statement provided that:

A person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership. A person’s mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership. CLS individually addresses each situation that arises in a sensitive Biblical fashion.

Though voting members and leaders were required to sign the statement, the group allowed all students, regardless of belief, to attend meetings and participate in group activities.

Hastings denied CLS’ application for RSO status because, according to Hastings, CLS’ Statement of Faith violated Hastings’ non-discrimination policy by allegedly discriminating on the basis of religion and sexual orientation. Later, once litigation commenced, Hastings argued that it had denied CLS official recognition not because of the non-discrimination policy, but instead because CLS violated the school’s “all comers” policy, which requires any RSO to admit any student as a voting member or leader.

Because Hastings refused to recognize CLS as an RSO, CLS sued Hastings in federal district court, arguing that the refusal violated the group’s rights to freedom of speech, freedom of association, freedom of religion, and equal protection under the law. The district court ruled against CLS, holding that the denial of recognition had no significant impact on the group and that Hastings had an interest in prohibiting discrimination. CLS then appealed to the Ninth Circuit Court of Appeals, but in a cursory opinion of just two sentences, the Ninth Circuit also found in favor of Hastings. Finally, CLS petitioned for the Supreme Court to hear its case, and the Supreme Court agreed. On April 19, 2010, the Court heard oral arguments in the case. FIRE and the national student group Students For Liberty submitted an amici curiae (friends-of-the-court) brief on behalf of CLS.

“What did the Supreme Court decide in CLS v. Martinez?”

In CLS v. Martinez, the Supreme Court ruled that Hastings did not violate CLS’ First Amendment rights by denying it official recognition under an “all comers” policy. In a sharply divided 5-4 vote, the Court held that a public university could require its student organizations to accept any student as a voting member or leader, regardless of whether the student openly disagrees with or is even hostile to the group’s fundamental beliefs. The Court found that Hastings’ “all comers” policy was viewpoint-neutral and reasonable in light of the purposes served by the student organization forum. As such, the Court held that the school’s decision to deny recognition to CLS, due to its “Statement of Faith” requirement for voting members and officers, did not violate the student group’s freedom of association under the First Amendment.

The clarity of the Court’s holding in Martinez is muddled by two important factors. First, the Court ruled on the constitutionality of the “all comers” policy despite significant evidence in the record that Hastings actually derecognized CLS under a broader non-discrimination policy. As a result, the case has gone back to the Ninth Circuit Court of Appeals on remand, where that court will determine whether Hastings’ “all comers” policy was adopted merely as a pretext for censoring CLS or has been selectively enforced against CLS. Given the evidence in the record for these possibilities, the proceedings before the Ninth Circuit will certainly bear close following. Second, it is important to remember that the vast majority of colleges and universities do not have “all comers” policies. Rather, schools that have in the past denied recognition to student organizations for making belief-based membership decisions have done so under more standard non-discrimination policies. These types of policies, as applied to deny the freedom of association of student organizations like CLS, remain presumptively unconstitutional in the aftermath of the Supreme Court’s narrow ruling in Martinez.

“What does FIRE think of the Court’s decision?”

FIRE is deeply disappointed in the Supreme Court’s ruling and views it as a dangerous threat to students’ First Amendment rights. Martinez contradicts longstanding Supreme Court precedent upholding the freedom of association as fundamental to the exercise of one’s First Amendment rights and allowing private organizations to make belief-based choices regarding membership and leadership.

The majority opinion takes the bizarre position that belief-based student organizations may not “discriminate” on the basis of belief, ignoring the fact that this kind of “discrimination” is precisely what freedom of association is designed to protect. Per the Court’s reasoning in Martinez, belief-based student organizations cannot evaluate students with reference to the very principles that are the reason for their existence when making decisions about leadership, voting membership, and–because a group’s statements come from its leaders and members–its message. This regrettable outcome eviscerates freedom of association, rendering it a hollow right.

Martinez
also fundamentally misunderstands the purpose of student organizations and the wider nature of campus discourse. Both Justice Ruth Bader Ginsburg’s majority opinion and Justice Anthony Kennedy’s concurrence presuppose that requiring all student groups to accept any student as a voting member or leader will promote robust discussion and a meaningful exchange of ideas on campus. However, the majority failed to recognize that the forced inclusion of students who disagree with a group’s core tenets serves to reduce the diversity of opinion on campus, rather than adding to it, by rendering student groups less effective in espousing a clear, consistent message. By diluting or even outright silencing a student group’s particular viewpoint, such forced inclusion robs campuses of the full panoply of ideas held by the student body. In other words, schools that enforce an “all comers” policy are mandating a manufactured “diversity” of beliefs within a group at the cost of a true diversity of beliefs among groups.

Moreover, Martinez‘s “all comers” policy carries the potential to create absurd results. Under such a policy, the College Democrats on a university campus are forced to accept Republican students as voting members and leaders; pro-life student groups have to accept pro-choice students; and so on. It would not be enough under the Martinez decision that these groups allow disagreeing or hostile students to attend meetings, as CLS did at Hastings; rather, student groups have to allow hostile students to become voting members and leaders. As FIRE pointed out in our amici brief, this will allow for hostile takeovers, where opposing or hostile students with sufficient numbers can take over a group’s voting membership or leadership, determine its direction, and root out its viewpoints from campus. Under an “all comers” policy, hostile takeovers–as well as increased opportunities for spying, dirty tricks, and, perhaps most likely, the dilution or unwanted alteration of a group’s viewpoint–are a threat to any belief-based organization on campus.

Finally, the majority opinion in Martinez fails to appreciate the impact that denial of official recognition can have on a student organization. In this case, CLS’ loss of recognition resulted in the group being stripped of access to university benefits such as meeting space, student fee funding, e-mail listservs, and literature distribution tables. The Court’s majority opinion held that these losses were mitigated by the group’s ability to avail itself of private means of communication such as social networking sites. In so holding, the majority demonstrated a disturbing level of comfort with relegating belief-based student groups to second-class status on campus. It essentially forces groups such as CLS to choose between allowing hostile students to become voting members and leaders, or operating on the outskirts of campus life.

“This is a case about student groups. What does CLS v. Martinez have to do with free speech?”

CLS v. Martinez has a great deal to do with free speech because Hastings denied CLS its First Amendment right to freedom of expressive association–that is, the right to join together with others of like mind to promote a common message. This right is guaranteed to student groups on public university campuses. For example, students who are dedicated to a particular cause can band together, combine resources, hold meetings, craft their shared vision, and thus more effectively reach their fellow students with their message. The freedom of expressive association also includes the freedom not to associate–that is, a group has the right to exclude those who don’t share the group’s beliefs. Otherwise, a group might lose control of the message it wants to articulate. So, by requiring student groups on public campuses to admit all students as voting members and leaders, regardless of whether or not these students actually agree with a given group’s core beliefs, Martinez infringes heavily upon the First Amendment right to freedom of expressive association.   

“How does FIRE think CLS v. Martinez will impact speech on campus?”

Unfortunately, FIRE expects the Martinez ruling to have negative repercussions for student groups on campus, especially for those holding viewpoints that are controversial or unpopular on campus.

As FIRE’s case history illustrates, universities have long sought to deny recognition to groups seeking to make certain types of belief-based membership choices, but until now have been limited by court decisions protecting these groups’ right of expressive association. Therefore, we anticipate a proliferation of “all comers” policies on campuses across the country since the Supreme Court has, by holding such policies constitutional, provided universities with a legal justification for what they have long sought to do. Indeed, even if “all comers” policies are not formally adopted, both the procedural history of CLS v. Martinez and FIRE’s decade of experience fighting for student rights on campus demonstrate that universities have been quick to seize on any opening in the law to banish unwanted opinions from campus. No matter how narrow the holding in Martinez in fact is, universities will likely use the ruling as justification for silencing speech in ways that it does not technically allow.

We expect devoutly religious groups–especially evangelical Christian groups–and other belief-based groups holding minority or dissenting viewpoints to be confronted with derecognition. Targeted groups will face a terrible choice: Either relinquish control of the group’s core message and allow all students, regardless of belief, the opportunity to obtain voting membership and leadership positions, or leave campus. Those groups that choose to comply will run the risk of takeover, dilution, and other interference. Those groups that refuse will lose the ability to participate as equals in the life of their campus.

It is important to remember, however, that despite the harm done to associational rights on campus, Martinez does not affect the broad speech protections that individual students enjoy. The Court reaffirmed that, although an “all comers” policy may be constitutional in its eyes, college administrators are not permitted to craft policies that discriminate on the basis of viewpoint. Quoting from earlier precedent, the Martinez Court noted that a public university may not restrict speech “simply because it finds the views expressed by [a] group to be abhorrent.”

“Does FIRE support public funding or subsidies for discrimination on campus?”

This question is perhaps the one we have been asked the most in the wake of Martinez, and it requires two answers. We will first explain why granting a student group recognition does not amount to funding or a subsidy, and then we will explain why a belief-based student group’s decision to restrict voting membership and leadership to like-minded students is not discrimination.

First, the funding question.

Many supporters of the Court’s decision in Martinez recognize that private groups may exercise their right of expressive association to exclude certain members on the basis of belief, but argue that a public university need not “fund” or “subsidize” this type of “discrimination.” But consistent with Supreme Court precedent, granting CLS official recognition would not have been the equivalent of government funding or subsidies for CLS. When the government opens up a forum for speech on its property, as the University of California Hastings College of the Law did by creating the student organization system on its campus, it necessarily provides its facilities and other benefits to speakers. Thinking of these benefits as “subsidies” leads to the incorrect assumption that the government is somehow sponsoring or sanctioning all speech that takes place in the forum. The Supreme Court has held that when the government opens up a forum to facilitate speech, even on its own property, that speech is still considered private and is not attributable to the government. In fact, within this government-created forum, the government may not exclude speech on the basis of viewpoint. This tenet of First Amendment law prevents the government from purposely distorting the marketplace of ideas by using its resources or spending power-in other words, by claiming that because it is providing facilities or funding, it can control the viewpoints expressed on its property. As a result, when a university creates a forum for student expression by providing facilities and funding to student organizations, the student organizations’ speech is still considered private.

Next, the discrimination question.

Belief-based organizations like CLS must be permitted to make belief-based choices–to “discriminate”–when choosing their leaders and voting members. A private group like CLS that engages in “discrimination” based on beliefs–which are necessarily malleable, however deeply held, unlike one’s sex or the color of one’s skin–is not guilty of invidious status-based discrimination. Indeed, this is freedom of association in practice.

There is a difference between making a determination on the basis of an immutable characteristic and making a choice on the basis of changeable personal beliefs and rules of conduct. “Discrimination” on the basis of belief is not the same as invidious discrimination based on status. Excluding individuals because of animus based on immutable characteristics like race or sex is considered by the Court to be fundamentally irrational. The right to exclude members based on status as opposed to belief does not follow from the right to form expressive organizations, because one’s skin color or sex does not define one’s beliefs. However, the right to exclude people who do not share a common belief central to the group’s purpose is fundamental to the right to expressive association.

In this case, CLS believes that “unrepentant” sexual intercourse (whether heterosexual or homosexual) outside of marriage between a man and woman is wrong, and asks that those who would lead the group share that conviction. That this requirement would dissuade many gay men and women from joining nevertheless fails to turn what is a belief-based membership requirement into an instance of invidious, status-based discrimination. By asking would-be voting members and leaders to sign its Statement of Faith, CLS is not prohibiting these individuals from engaging in homosexual conduct or premarital sex. Rather, CLS is asking that if they do engage in this conduct, they be repentant about it, in accordance with the group’s religious beliefs. That the group requires this type of repentance may seem misguided and even offensive to many people, homosexual and heterosexual alike. But whether or not this viewpoint is misguided or offensive is not the government’s decision to make. Nor does CLS’ requirement of “repentance” target “gay persons” as a class. Rather, by disapproving of sexual conduct of any kind outside of marriage, the group’s prohibitions are “targeted” at all those who do not share the group’s beliefs about sexual activity, whatever their orientation. (It is worth noting that CLS’ conception of sexual morality is shared in significant part by many sects within the world’s major religions, including Islam and Judaism.)

“I’m a student leader of a student group at a public college. How will CLS v. Martinez affect my organization?”

The answer will vary from campus to campus, depending on the policies adopted by your college and the type of group you lead. However, FIRE expects that public colleges will take full advantage of the perceived opportunity to crack down on student organizations they dislike, regardless of the Court’s limited holding in Martinez. We cannot assume that enforcement of policies governing student organizations will be implemented in fair, limited, or non-selective ways following Martinez.

If your college does institute an “all comers” policy and your group maintains belief-based criteria for membership, you may face derecognition. Be sure to determine if other groups that maintain belief-based criteria for membership are treated the same way. If you are denied recognition under the new policy but other groups are not, your college may be violating your rights and you should contact FIRE immediately.

If your college does not institute an “all comers” policy, Martinez may not affect you. However, despite FIRE’s efforts, a number of colleges are likely to mistake the decision in Martinez for license to derecognize student groups even without adopting an “all comers” policy.

You should therefore still be aware of any changes in college policy, and you should familiarize yourself with your student organization regulations in order to make sure that they are not being invoked selectively against groups with minority or unpopular viewpoints on campus.

“I’m an administrator with oversight of student organizations at a public college. How does CLS v. Martinez change the way my institution may regulate student organizations?”

Martinez held that an “all comers” policy is constitutional, but only if the policy is evenly applied and does not target certain groups on the basis of their viewpoints, and only if it reflects “reasonable” educational goals. Martinez did not hold that an “all comers” policy is required, desirable, effective, or even practical. Indeed, the Court recognized certain problems associated with this type of regulation–for example, the possibility of hostile takeovers, as discussed above. The Court held that in the event that “students begin to exploit an all comers policy by hijacking organizations to distort or destroy their missions, [a university] presumably would revisit and revise its policy.”

For many reasons, adopting an “all comers” policy is highly inadvisable.

For one, an “all comers” policy renders colleges powerless to stop members of rival or opposing student groups from joining, spying on, taking over, or simply diluting the message espoused by other groups. For example, under an “all comers” policy, atheists cannot be prevented from joining Muslim groups, voting themselves into leadership positions, and then voting to disband the group. In the coming election season, members of the College Democrats would be unable to stop College Republicans (and vice versa) from listening in on strategy meetings or even casting critical votes about strategic decisions. Actions like these would obviously lead to increased bitterness and rancor among groups on campus, yet they would be almost unavoidable under an “all comers” policy.

Further, an “all comers” policy would be nearly impossible to fairly enforce. Any college adopting such a policy must prevent La Raza from excluding students who are hostile to Mexican immigration and an environmentalist student group from denying voting membership to global warming skeptics. Meanwhile, conservative and progressive newspapers alike will be attacked by their critics, who will bring into question whether such time-honored publications have a right to exist at all under an “all comers” policy. Unless a college is absolutely confident that it has addressed every such requirement in every recognized student group, it risks legal liability for violating the CLS v. Martinez mandate that enforcement of an “all comers” policy be evenhanded.

Perhaps most importantly, an “all comers” policy ultimately subjects freedom of association to the limits of tolerance among campus majorities, impairing the intellectual and cultural diversity among groups that is vital on college campuses. A liberal education progresses in great measure through learning from different groups with distinct identities and opinions as those groups express their unique messages on campus. Diluting those messages through an “all comers” policy contracts rather than expands the marketplace of ideas across campus. As John Stuart Mill wrote about censorship in On Liberty: “If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Imposing an “all comers” policy on your campus will lead to increased hostility among student groups, increased chaos within those groups, and a greatly increased need to police groups for compliance-all while increasing, not decreasing, the likelihood of a lawsuit. The way to maintain harmony and genuine diversity among student groups on campus is to continue to allow student groups to form around shared beliefs in order to maintain their ideological, religious, or political identity.

“I’m a FIRE supporter. How will FIRE respond to the Court’s ruling?”

Our response is composed of four main initiatives:

1.      Educating students and administrators about the Court’s holding.

FIRE is working diligently to ensure that students, faculty, and administrators recognize that Martinez does not require universities to adopt an “all comers” policy, nor does it recommend doing so, and that adopting an “all comers” policy may in fact lead to disruption on campus, the silencing of minority and dissenting viewpoints, and increased legal liability.

2.      Defending student groups faced with derecognition.

FIRE will fight unjust derecognitions of belief-based student groups, as we always have. With respect to “all comers” policies, FIRE now must contend with an unfavorable Supreme Court ruling, but we will continue to make the moral argument against such derecognitions vigorously.

3.      Uniting disparate groups around the importance of freedom of association.

FIRE will mount a public campaign to unite groups across the ideological spectrum in support of the right to freedom of expressive association. We believe that once belief-based groups on campus begin to suffer the effects of an “all comers” policy, discontent with the policy’s application and recognition of the critical importance of the right to make belief-based decisions about membership and leadership will grow. FIRE’s ultimate goal is to convince the Supreme Court to overturn this unwise decision.

4.      Documenting the negative consequences.

FIRE will devote significant resources to documenting the negative consequences of CLS v. Martinez at campuses across the country.

“I care about freedom of association on college campuses. Is there anything I can do to help?”

Absolutely. Working to defend freedom of association on campus will be significantly more difficult in the wake of CLS v. Martinez, and FIRE will need all the help we can get.

If you’re a student or faculty member, we urge you to join our Campus Freedom Network (CFN). The CFN advances FIRE’s mission by providing resources and educational opportunities to students and faculty engaged in advancing individual rights on campus.

If you’re a college administrator, contact FIRE to discuss why freedom of association is threatened by “all comers” policies, and why it’s of such crucial importance on campus.

If you’re a concerned citizen, you can donate to FIRE here and get involved in our current action campaigns here.

If you’re an attorney, you can join FIRE’s Legal Network and help us defend student and faculty rights in court.

“Where can I read more about FIRE’s assessment of CLS v. Martinez?”

FIRE has written extensively about CLS v. Martinez. In addition to the list below, our case page assembles all of our case materials.

Blog Entries

Media Coverage

Case Materials

ADF Supplemental Response,” July 26, 2010

‘Lopez v. Candaele’ Defendants Cite ‘CLS v. Martinez’,” July 15, 2010

In ‘CLS v. Martinez’ Ruling, Sharply Divided Supreme Court Undermines Freedom of Association on Campus,” June 28, 2010: In a blow to freedom of association and religious liberty on campus, a sharply divided U.S. Supreme Court ruled today that a public university may require its student organizations to admit any student as a voting member or officer, regardless of whether that student openly disagrees with or is even hostile to the group’s fundamental beliefs.

FIRE Files Supreme Court ‘Amicus’ Brief Supporting Freedom of Association in ‘Christian Legal Society v. Martinez’,” February 4, 2010: Today, the Foundation for Individual Rights in Education (FIRE) filed an amicus brief with the U.S. Supreme Court. FIRE is asking the Court to defend the First Amendment right to freedom of association by overturning the Ninth Circuit Court of Appeals’ decision in Christian Legal Society v. Kane, which allowed University of California Hastings College of the Law to forbid its chapter of the Christian Legal Society to organize around shared religious and cultural beliefs. FIRE’s brief, which was joined by the national student organization Students For Liberty, also pointed out that the Ninth Circuit’s decision let Hastings demand that all groups accept “all comers” as voting members, which leaves groups with minority viewpoints subject to hostile takeovers by students in the majority.

FIRE Amicus Brief in Christian Legal Society v. Martinez, February 4, 2010,” February 4, 2010

Schools: University of California Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group