First Reactions to ‘CLS v. Martinez’

By June 28, 2010

Reactions to today’s Supreme Court decision in Christian Legal Society v. Martinez have lit up the Web. The Chronicle of Higher Education and InsideHigherEd.com have posted articles detailing the case, and Reason‘s Jacob Sullum and the Cato Institute’s Roger Pilon have supplied summaries of the ruling.

For our part, here’s FIRE President Greg Lukianoff’s response from our press release:

“FIRE is deeply disappointed by the Supreme Court’s decision in Christian Legal Society v. Martinez. For all of the reasons stated in our brief, we believe the practical effect of this case will be the derecognition of devoutly religious groups-especially evangelical Christian groups. This is a loss for diversity and pluralism on campus, not a win,” said FIRE President Greg Lukianoff. “FIRE will continue to fight for the rights of expressive campus organizations to form around shared beliefs and for the principle that the College Democrats have the right to be Democrats, the College Atheists have the right to be atheists, and the College Christians have the right to be Christians.”


Erica Goldberg, FIRE’s Justice Robert H. Jackson Legal Fellow, offers her initial impression of the ruling here on The Torch, focusing on Justice Kennedy’s concurring opinion:

Forcing student organizations to accept those who disagree with their message teaches students that their views can be marginalized by those with more popular beliefs. Instead of allowing student groups to host events together if they wish to exchange ideas, Justice Kennedy permits the university to require them to commingle.


Disappointment over the decision has been shared by several other defenders of the First Amendment on campus as well.

For example, the Student Press Law Center’s Adam Goldstein argues in his observations for The Huffington Post that “the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.” In a must-read entry, Adam writes:

The majority draws an even more impermissible inference immediately thereafter in the opinion, where it asserts that the ability of the group to survive despite not receiving RSO status means that its rights were not meaningfully violated.

Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation. Based on the record before us, CLS was similarly situated: It hosted a variety of activities the year after Hastings denied it recognition, and the number of students attending those meetings and events doubled.

Slip op. at 25 (citation omitted). But whether the group grows or not has nothing to do with whether its rights were violated. Christianity grew in Rome even as Christians were being fed to the lions for sport; I would nevertheless assert that being devoured constituted a dramatic infringement on the civil rights of those ingested (and of the Christian community as a whole).

Similarly, the Court makes a grievous error of logic and law when it reasons that growing membership is evidence that the group was not harmed by denial of RSO status. That the school’s limitations on recruiting failed to exterminate the group is not evidence of the validity of the restrictions any more than the survival of Falun Gong members despite China’s persecution is evidence that China hasn’t violated anyone’s rights.

And here’s noted civil libertarian, lawyer, and FIRE Board of Advisors member Wendy Kaminer discussing the case’s implications for The Atlantic. Like Erica, Wendy seizes upon Kennedy’s concurring opinion:

What’s perverse about Kennedy’s statement is his conflation of loyalty oaths (or their equivalents) required by private associations with loyalty oaths required by the state. CLS, a conservative religious organization, requires prospective members to sign a “Statement of Faith,” which includes an affirmation of CLS’s religious view of sexual conduct. That requirement is an exercise, not a violation, of First Amendment associational rights. The right to associate obviously includes a right to discriminate–to choose the people with whom you wish to associate.

Writing for National Review, Alliance Defense Fund Senior Counsel and former FIRE president David French examines the good, the bad, and the ugly of today’s ruling. To end on an optimistic note, check out David’s useful summation of “the good,” focusing on the opinion’s narrowness and the prospects for CLS on remand before the Ninth Circuit:

The Court’s ruling is remarkably narrow. One of the strange quirks of this case is that there were actually two university policies at issue at different times in the case. Initially, the Christian Legal Society was de-recognized because it allegedly violated the school’s nondiscrimination policy, which prohibited-among other things-discrimination on the basis of “religion” and “sexual orientation” (CLS required leaders and voting members to agree with the group’s statement of faith and refrain from extramarital sexual activity). During the course of the litigation, the university stated that its policy actually required student groups to accept “all comers.” In other words, student groups could not exclude students from membership or leadership for any reason. This kind of policy is exceedingly rare: At the time of the oral argument, we were aware of no other university with an “all comers” policy.

Despite what you might read in the mainstream media, the court did not rule that the “classic” nondiscrimination policy (which is in force in hundreds of universities) trumped the student group’s right to freedom of association. That issue was left unresolved. Instead, the Court ruled that the all-comers policy (which is in force virtually nowhere) was constitutional – but only if it had been applied equally to all groups on campus.

So CLS has not yet lost its case. Despite an unfavorable ruling on the all-comers policy, it can still prevail on remand if it proves that the university did not apply the policy to all student groups but instead specifically targeted CLS. We have powerful evidence that the university has, in fact, targeted CLS.

We’ll keep you posted, of course, here on The Torch with much more to come as the week progresses.

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