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) protégé of Chief Justice John Roberts.
"There is, of course, a real constitutional issue lurking in the case: how far can a public college go in trying to ensure equality of educational opportunity for all students, before it winds up intruding on the private beliefs of a group that is not completely open to all comers?" Lyle Denniston wrote at ScotusBlog. "That is, as several Justices noted pointedly, an issue of genuine significance, and the Court obviously took the Christian Legal Society case to decide it. But, after wading through hundreds of pages of legal briefs, the Justices did not appear to have come to the bench with a firm idea what was actually at stake."
Among the unresolved questions: How many policies does UC-Hastings really have? How old is the policy/policies? Was CLS singled out? Were other groups (like La Raza, a group for Latino students) told to change their rules on leadership? If so, were they told to do so before or after the CLS lawsuit began? Is CLS's rule against homosexual conduct discrimination based on sexual orientation? Is UC-Hastings particularly concerned about discrimination against sexual orientation, or is it just trying to implement an "all comers" policy in which sexual orientation, religion, personal opinion, favorite food, and other issues are all irrelevant? Is CLS making arguments against facts that they stipulated to early on in court proceedings? Is UC-Hastings?
It's not just the justices who are frustrated. "Every time the policy is mentioned, it seems to morph into something else," McConnell said. "When the dean announced in the depositions, she said all students may participate in all activities, period, full stop. Now we find out in their brief, well, the groups can have conduct limitations, they can require dues, they can have attendance requirements, they can have competitive contests to see whether they get in. This policy changes with every wind."