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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 24, 2010 ::
    More preparations for CLS armageddon

    I wrote a rather confused blogpost here (scroll down, after enjoying the Douglas/IOLANTHE business if you like) about the rather confused oral argument in CLS v. Martinez (decision expected next Monday; see post immediately infra).

    It will be interesting -- if, as predicted, the Court's opinion is written by either Justice Stevens or Justice Ginsburg -- to see whether, in upholding Hastings College's policy of withholding "registered student organization" status from organizations whose membership criteria are "discriminatory," the Court either explains why Hastings would have to allow anti-Muslim students to take over a Muslim student group (a hypo advanced at oral argument by Justice Alito), or else, explains why its holding does not compel such a result, since a "believing Muslims only" policy would surely be "discriminatory" under any imaginable rationale that would have Hastings College winning this case.

    It will also be interesting to see whether the Court shows any sign of agreeing with Justice Breyer (to cite one of his hypos from the oral argument) that Hastings's policy would force it (if applied consistently; i.e., non-discriminatorily) to bung Orthodox Jewish services off its campus, though Reform and Conservative Jewish services would remain welcome: Orthodox Jewish worship separates men and women, and that's discriminatory, don't you know, so -- can't let it happen on the College's dime, am I right? Am I right?

    :: David M. Wagner 11:37 AM [+] ::

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