Caesar’s attempt to control what is God’s

The United States Supreme Court granted review in a significant matter of student associational rights. In Christian Legal Society Chapter v. Martinez, the Ninth Circus Court of Appeals ruled against the Hastings College of Law chapter of the Christian Legal Society in a challenge to the state law school’s policy of denying official recognition and funding to groups that violate the school’s open membership policy.

In an attempt to impose its dogma of non-discrimination, Hastings, like many other schools around the country, requires that student organizations not discriminate against anyone who wants to become a member of the organization. The school interprets that as applying also to student officers/leaders of the organization. As a result, a school’s Democratic club must allow Republicans to join and potentially become leaders, and vice versa. The Jewish student organization must allow Muslims to join and potentially become leaders, and vice versa.

The campus chapter of the Christian Legal Society requires that its officers and voting members adhere to certain core religious viewpoints and to conduct themselves accordingly. For example, sexual conduct outside marriage would be prohibited and the teachings against adultery must be accepted by such officers of CLS. One concern of the group is that, as a small group on campus, a determined disruptive collection of their opponents could overwhelm them numerically and hijack the organization’s direction. Another concern is that their identity, based on a central religious message, not be diluted, and that these restrictions are necessary for the effective maintenance and perpetuation of the message. People who do not subscribe to these core tenets can still come and participate in the meetings and hear speakers, but they cannot select or be the leaders.

This has been an irritant to the administration and to at least some homosexuals and their ideological allies. Because the Biblical message of the sinfulness of sexual relations outside a marriage between a man and a woman conflicts with the dogma of the liberal elite regarding homosexual relations, Hastings and other schools want to force religious institutions within the unrelenting secularism the school administrations espouse. The schools view CLS’s policy as discriminating against homosexuals. That, of course, is not correct. Homosexuals who are celibate and who subscribe to the Bible’s teachings in this regard are still free to be voting members and officers of CLS. Only sexually promiscuous (or want-to-be promiscuous) homosexuals—and similarly-inclined unmarried heterosexuals—are disqualified. Hastings, then, is in the eyebrow-raising position of trying to protect the rights of sexually promiscuous students and/or of students who disagree with core beliefs of the organization they propose to lead and represent.

There are two other wrinkles in this matter. One is trying to discern whether certain positions reflect core beliefs of the organization or are more peripheral. That is a difficult determination and not one for which courts are particularly suited. But the greater the extent to which the matter is declared by the organization to be a central tenet, and the greater the extent that it seeks to control contrary conduct among its members and officers, the better its argument that these are matters crucial to the organization’s purpose, message, and identity.

Another problem is the extent to which Hastings disadvantages the CLS students. Schools vary in this regard. Some schools merely refuse to grant funding from student funds for these groups. Other schools couple their non-recognition and denial of funding with an absolute or qualified refusal to allow the use of campus space for meetings. In the qualified refusal scenario, CLS could still get access to space on campus, but only after all other uses have been met, such as for classes, student study groups, faculty meetings, and gatherings of officially-approved student groups. The schools argue that CLS is not prohibited; they just cannot get the same advantages as other groups, especially student fee-based subsidies.

That raises the choice of constitutional issues. One is the free exercise issue. However, the test there is not particularly favorable for CLS. The general rule under Employment Division v. Smith is that a law or policy of general applicability that is not directed against religious exercise is likely to withstand constitutional challenge under the very deferential “rational basis” test. There is likely no evidence that Hastings and other schools are adopting these open membership policies to inhibit free exercise of religion, rather than out of some blinkered notion of mindless egalitarianism. One exception to this test is if the law or policy burdens not only the free exercise of religion, but also another constitutionally protected interest. In such a hybrid case, the much tougher judicial standard of “strict scrutiny” is applied, and the government policy likely will be found constitutionally wanting.

In this case, the other part of the “hybrid” right would be the free speech-connected right of association. Under cases such as Boy Scouts of America v. Dale, if the government seeks to compel an open membership policy that conflicts with a central component of the organization’s message and identity, that government action violates the Constitution. Government would be compelling the organization to accept a message it imposes. There is little the organization can do to escape that compelled message as its own members seek to foster a common bond that is contrary to the state’s compulsion. There is also little that the organization can do to counteract that compelled message as it tries to represent itself to outsiders.

Moreover, the qualitatively rather intimate (spiritually speaking) nature of a religious organization that focuses on spirituality, Bible study, and prayer suggests that a government-compelled membership policy undermines that essential characteristic of CLS. Another, albeit less clear, characteristic that militates against government-compelled membership is that CLS chapters (though not the national society) is quantitatively an intimate association. These chapters tend to be small in number. However, this argument usually requires some showing that the organization is highly selective and discriminatory in many regards. CLS is not, as it makes only a few demands on its members.

Another wrinkle here is the aforementioned funding restriction. In a sense, the school is only cutting off funding (and, in some cases, effective access). If CLS does not like the open membership policy, it can just say “no” to the school’s funds, even as it continues to exist. There are a couple of responses here. First, since these funds come from all students, CLS arguably has an equal right of access to them with other organizations. The school might reply that the organization has access, as long as it observes the membership policy applicable to everyone. Rosenberger v. Rector, which guaranteed equal access to student fee-based funding for publications of religious student clubs as was given to those of other student organizations might not apply here.

On the other hand, the ambiguous “law of unconstitutional conditions” might cover this case. The school is free not to fund student groups out of student fees, but if it does, it cannot impose unconstitutional conditions on the recipients. This is not a case like Rust v. Sullivan, in which government sought to prohibit the spending of its funds on a specific message that the government opposed and that the organization was trying to disseminate. In Rust, the organization had other funds to disseminate that specific message. Here there is no such specific message that is being funded. The purpose of the funds is to fund student activities and clubs. Nor is this a case where the school is trying to fund the dissemination of its own specific message as a speaker (such as an academic conference), in which situation the government has broad, though not unlimited, discretion to decide what message to fund.

In evaluating whether or not this is an unconstitutional condition, then, the matter goes back to the burdened associational interests discussed earlier. Courts have come to different conclusions. While the Ninth Circuit Court of Appeals held for the school and against CLS, a similar case before the Seventh Circuit Court of Appeals that involved Southern Illinois University, went against the school. This split among the lower federal courts, and the prevalence of such open membership policies at law schools, likely caused the Supreme Court to take the case.

I would prefer that law schools not fund any student organizations out of student fees. Let the students decide where they want to put their money. That reflects my general approach that most things the government touches, it corrupts. Call it the reverse Midas touch. That is equally true for law school administrations. Certainly, student groups are not entitled to foster their constitutionally-protected activities through school funding. There is even an argument, in my mind, that government should have absolute discretion to fund what it wants, though I believe that would be bad policy. But it doesn’t matter, because that latter position is not the constitutional decisional law in this area.

As far as control over school facilities, the same argument about unconstitutional conditions applies. Once more, one can argue that the school should be free to open and close its facilities to whomever it wants. At the very least, once more, the school should be free to close its facilities to all student groups, as schools generally are not considered public fora for expression. That is the law in the abortion context, where the state can close its hospitals to elective abortions, as long as it doesn’t unconstitutionally interfere with the right of private clinics to provide abortions. The school context may be different though, since student groups likely have little alternative to meet somewhere else in their position as student groups. Their identities as student groups are tied to the school at which the members are students. On a practical level, no school is going to deny access to student groups across the board.

Moreover, in the abortion scenario, closing the facilities does not directly burden the underlying right, defined only as ”choosing whether or not to have” the abortion. Closing the facilities does directly burden the underlying right of meeting in an organization bound by common principles. Further, doing so on the basis of the message’s content once more directly targets that associational choice.

If Hastings is held to be infringing a constitutionally protected interest, the school can still defend its policy on the basis of a general desire to foster inclusiveness and to present its own message of non-discrimination. Those are compelling interests, but the problem is the heavy-handed method the school has used. While under free exercise clause jurisprudence there is no constitutional obligation to accommodate religious institutions, under a broader freedom of association approach, the school may be required to show that there is no way that is less burdensome on CLS that will still accomplish the school’s objectives.

It is difficult to predict how the Court will decide. I expect a closely-divided Court along predictable ideological lines.

DISCLOSURE: I am the faculty advisor to the CLS chapter at my law school. As a private institution, our school is not directly covered by restrictions in the Constitution. There may be limits on what the school can do here under state law, though. Leaving that point aside, our CLS chapter has not had difficulty with the administration—yet.