FREE SPEECH/ASSOCIATION — The U.S. Supreme Court today held that a public university can
require that officially sanctioned and supported student groups allow ''all comers'' in order to receive the
benefits of formal recognition. Such a requirement, a 5-4 majority led
by Justice Ruth Bader Ginsburg decided, does not violate the First
Amendment's guarantees of freedom of speech or association, reports Chris Geidner for MetroWeekly.
The case, Christian Legal Society v. Martinez, is the second
time in as many weeks that (sexual identify)-equality advocates found themselves on
the winning side of a case at the high court.
This morning, Ginsburg
spoke about what she called a ''novel First Amendment question.''
The case arose from circumstances at the University of
California-Hastings College of the Law in San Francisco, in which the Christian Legal
Society (CLS) on campus refused to admit all students as members,
primarily leading to an exclusion of those who engage in what is
referred to as ''unrepentant homosexual conduct.''
This violated the
nondiscrimination policy of the school, as well as the more broad ''all
comers'' practice that all parties agreed was applied at the school,
leading to the school's refusal to grant CLS formal recognition.
This, CLS argued, was a violation of the students' free-speech rights
and associational freedoms. The university, which was sued by CLS, and
Outlaw, the LGBT student group at the university who joined in the
That Ginsburg was there on Monday might have been a surprise to some.
As Chief Justice John Roberts noted at the outset of the court's
session, Ginsburg's husband of more than 50 years, Martin, died June 27.
The chief justice told the crowd assembled to hear the announcement of
the final decisions of the term that Martin Ginsburg, a celebrated tax
attorney, ''was as loving as he was gifted.''
The day also was notable for it likely was Justice John Paul
Stevens' last day on the bench, having announced his retirement earlier
this year. The confirmation hearings for President Obama's nominee for
Stevens' replacement, Solicitor General Elena Kagan, began a little
more than an hour after the court recessed.
Despite the unusual circumstances of the day, all nine Supreme Court
justices were there as Ginsburg told the audience that the question
before the court was: ''May a public law school condition official
recognition of a student group on the group's agreement to open
membership to all students who want to join?''
The court's answer, she said, was yes, adding, ''to meet First
Amendment [requirements], the school need not provide a religion-based
The National Center for Lesbian Rights, which along with Paul Smith
at Jenner & Block represented Outlaw, praised the ruling.
''Today's decision affirmed the longstanding doctrine that university
nondiscrimination policies do not violate free speech when applied in a
consistent and evenhanded way,'' NCLR senior attorney Christopher Stoll
said. ''The court rejected the dangerous argument that anti-gay groups
must be given a special exemption from nondiscrimination policies.''
The ''dangerous argument'' was, however, supported by four of the
court's members, with Justice Samuel Alito writing a dissenting opinion
for himself, Roberts and Justices Antonin Scalia and Clarence Thomas.
Alito argued that the principle behind the court's majority opinion
was that there is ''no freedom for expression that offends prevailing
standards of political correctness in our country's institutions of
He wrote that the court's decision ''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].'''
Stevens, in one of his last opinions before his retirement, agreed
with Ginsburg's opinion but wrote separately as well, countering some of
Alito's arguments with blunt statements that struck at the heart of the
''CLS, in short, wanted to receive the school's formal recognition
and the benefits that attend formal recognition,'' Stevens wrote,
''while continuing to exclude gay and non-Christian students (as well
as, it seems, students who advocate for gay rights).''
Justice Anthony Kennedy, who also agreed with Ginsburg's opinion,
added an opinion of his own focusing on the role of student groups in a
''A school quite properly may conclude that allowing an oath or
belief-affirming requirement, or an outside conduct requirement, could
be divisive for student relations and inconsistent with the basic
concept that a view's validity should be tested through free and open
Stevens also fought back against what he saw as the distorted view
from the dissenting justices that the opinion ''point[s] a judicial
dagger'' at religious groups in America.
''Although the dissent is willing to see pernicious antireligious
motives and implications where there are none,'' Stevens wrote in a
footnote, ''it does not seem troubled by the fact that religious sects,
unfortunately, are not the only social groups who have been persecuted
throughout history simply for being who they are.''
The case has been sent back to the Ninth Circuit Court of Appeals,
which must decide several secondary arguments not resolved by the
Supreme Court opinion.