In a 5-4 decision this morning, the Supreme Court said that a California law school can require a Christian group to open its leadership positions to all students, including those who disagree with the group's statement of faith.
The majority opinion, issued by Justice Ruth Bader Ginsburg, said that Hastings College of the Law's "all comers" policy, which required all groups to open all positions to all students, "is a reasonable, viewpoint-neutral condition on access to the student-organization forum." The Christian Legal Society (CLS) chapter at the University of California school, Ginsburg wrote, "seeks not parity with other organizations, but a preferential exemption from Hastings' policy."
"Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership." Ginsburg wrote.
However, Ginsburg gave some hope to CLS, which had argued that Hastings officials had selectively enforced its "all comers" policy, allowing organizations like the Latino group La Raza, but not CLS, to have rules restricting its membership. Noting that lower courts had not addressed is accusation of selective enforcement (and that the Supreme Court "is not the proper forum to air the issue in the first instance"), Ginsburg said the Ninth Circuit Court could consider the argument.
CLS attorney Michael W. McConnell, a prominent constitutional law attorney and director of the Stanford Constitutional Law Center, said the organization will press the point at the Ninth Circuit. "We believe we will ultimately prevail in this case," he said. "The record will show that Hastings law school applied its policy in a discriminatory way. … The Supreme Court did not rule that public universities can apply different rules to religious groups than they apply to political, cultural, or other student groups."
CLS may face an uphill battle against the Ninth Circuit; the court's March 2009 decision against the group was a mere two sentences long. But McConnell said CLS's case is strengthened, ironically, by Justice Anthony Kennedy's concurring opinion. In it, Kennedy said that CLS would have a substantial case "if it were shown that the policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views."
"In other words, if any hostile students actually take advantage of the policy," McConnell said, "It would become unconstitutional."
How broad the implications?
In his dissent, Justice Samuel Alito castigated the majority opinion as political correctness run amok.
"The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,'" he wrote. "Today's decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning. … Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions 'do not wish to … lend their name[s].' … I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country."