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Headlines today are calling the Supreme Court sharply divided over whether a University of California law school can require its Christian Legal Society chapter to open its leadership to all students, including critics and non-Christians.

But there was sharp agreement, too: At some point during yesterday's oral arguments, nearly every justice wondered aloud what they were supposed to be discussing.

Justice Anthony Kennedy put it most baldly. "What is the case that we have here?" he asked. "It's frustrating for us not to know what kind of case we have in front of us."

Likewise, Justice Sonia Sotomayor admitted, "I'm not quite sure what the record is on these issues. I'm somewhat confused on the factual assumptions underlying this case."

In theory, Christian Legal Society v. Martinez could be a very important case, with both sides worried about discrimination. UC-Hastings wants to ensure that students aren't discriminated against in any campus context on the basis of sexual orientation, religion, gender, race, or handicap. The Christian Legal Society (CLS) chapter says the school's policy that it must open its leadership to those who disagree with its core beliefs is discriminatory.

The stakes can be seen in the prominence of the lawyers in the case: CLS is represented by Michael McConnell, who served on the Tenth Circuit Court of Appeals, now heads the Stanford Constitutional Law Center, and is one of the country's foremost scholars on the religion clauses of the Constitution. (Notably, McConnell played down the religious freedom implications of the dispute in yesterday's proceedings.) UC-Hastings is represented by Gregory Garre, George W. Bush's last U.S. Solicitor General and (according to The National Law Journal's Tony Mauro) ...

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April 2010

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