Supreme Court Rules Against CLS [Updated]

Statue of Justice

Statue of Justice at the St. Louis U. School of Law

Just for clarification, any opinions or analysis below are solely those of me, Mike Hickerson, and do not represent the official positions of InterVarsity. InterVarsity’s official statement on the ruling will be posted at when it is available.

This morning, the Supreme Court ruled by a 5-4 margin against the Christian Legal Society in its case, CLS vs. Martinez. Click here to see our earlier summary of the case. InterVarsity had filed an amicus brief supporting CLS in the case.

What is your reaction? Do you think this will hinder campus ministry?

I am most definitely not a lawyer, so I have no idea how this will impact InterVarsity’s ministry. Here is the central point of the ruling, written by Justice Ruth Bader Ginsburg, straight from the Supreme Court itself.

The all-comers policy [of Hastings College of Law] is a reasonable, viewpoint-neutral condition on access to the RSO forum; it therefore does not transgress First Amendment limitations.

The Court also ruled that, contrary to CLS’ argument but consistent with its earlier stipulations, the Hastings’ policy does not “target solely those groups that organize around religious beliefs or that disapprove of particular sexual behavior.” Additionally, the Court held:

Neither lower court addressed CLS’s argument that Hastings selectively enforces its all-comers policy. This Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider this argument if, and to the extent, it is preserved.

Justice Samuel Alito wrote the dissenting opinion. Here’s a key selection, emphasis added:

The Court’s treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. 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].”

This was a busy morning for the Court and for Supreme Court journalists, with three other rulings, including a major Second Amendment case, the confirmation hearings of Elena Kagan, and the death of Justice Ginsburg’s husband. I have not seen any substantive commentary on the ruling. I will try to update this post as analysis becomes available.

What is your reaction? Do you think this will hinder campus ministry?

Updates: CLS and the Alliance Defense Fund have put out a joint statement concerning the ruling.

Here is Ted Olsen’s summary from Christianity Today.

The AP story quotes Justice John Paul Stevens comparing CLS to anti-Semitic and racist groups:

Stevens, who plans to retire this summer, added that “other groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

Inside Higher Ed and the Chronicle also posted news articles about the ruling, which characterize the ruling as upholding “anti-discrimination policies” at universities nationwide.

However, David French of the Alliance Defense Fund has two blog posts about the ruling in which he suggests that the ruling is narrower than that:

As I read through the Supreme Court’s opinion, I’m struck by the profound narrowness of its holding.  Put simply, the Supreme Court upheld Hastings Law School’s policy that every student organization must be open to any student on campus.  This policy is known as Hastings “all-comers” policy, and as of the date of the oral argument in the case, we could not locate any other public university in the country with a similar policy.  In fact, in the more than 10 years that I’ve been arguing and litigating this issue on campus, I’ve never seen another policy like it.

Update [ 5:00 PM]: Legal scholar Eugene Volokh appears to agree with David French that the ruling applies only Hastings’ “all comers” policy, and not to more common anti-discrimination policies.

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Micheal Hickerson

The former Associate Director for the Emerging Scholars Network, Micheal lives in Cincinnati with his wife and three children and works as a web manager for a national storage and organization company. He writes about work, vocation, and finding meaning in what you do at No Small Actors.

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    Rich Grassel commented on June 29, 2010 Reply

    In matter’s like these it is always disappointing for Christian Organizations to be held to s different set of standards. One wonders, how the court might have ruled if it were a radical Islamic group or Hyper-Feminist Organization. The evidence that we continue to mover deeper and deeper into a Post-Christian era is overwhelming.

    On the other hand, I can’t help but wonder if it takes these kinds of events to revitalize our Christian faith. To depend on ANY state run organization for funding, permission and/or support smacks of a kind of modern day “Constantinianism.” The Church ALWAYS does better when it count only on the direction and movement of the Holy Spirit and not the support and legitimization from the State or any other civic group. Often times, there are simply to many compensations and accommodations that have to be made to satisfy their recognition of us…

    Sergey commented on July 26, 2010 Reply

    Rich Grassel, Awesome!

    God is releasing evil in the world to draw his children in the hour of revival. (Isa 45)

    We are to seek God for truth in this hour rather than fear the oppression of man.

    The government and man is under subjection of the Father therefore we will see God be exalted in times of sin and darkness in the christian groups who choose to denounce their salvation by choosing death of themselves rather than life in Christ.

    Bleesings to God

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