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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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    :: Monday, June 28, 2010 ::
    OK, let's turn to Christian Legal Society v. Martinez now. I'll start with the Alito dissent, cos it's my blog & I can do whatever I want (cos I'm not on the Hastings College of Law campus). "SAA" is loaded for bear:
    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].” Brief for Respondent Hastings College of Law 11; see also id., at 35. [Ellipsis in original]
    So what about those stipulations, the one the Court's opinion by Justice Ginsburg said it was "unseemly" for Judge McConnell, representing CLS, to try to "escape"? (Slip op. at 11) Alito and the other dissenters (Chief, Scalia, Thomas) reply:
    I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given by Hasting at that time was that the CLS bylaws did not comply with the Nondiscrimination Policy. See App. 228–229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004 [when Hastings denied Registered Student Organization, and its important attendant privileges, status to CLS].
    The difference between the "all-comers policy" and the written "Non-Dicrimination Policy" is that the latter is (1) what CLS was originally denied recognition under, and (2) a written policy under which sharp-elbowed viewpoint-based and ethnic-based organizations were allowed to exclude members who didn't advance their organization's goals, but (3) under which religious organizations received no protection (despite a string of SCOTUS decisions affirming that discrimination based on religious viewpoint = viewpoint discrimination) and (4) under which no organization until CLS had ever been denied -- an enforcement pattern that strongly suggests something other than neutrality.

    The "all-comers policy," on the contrary, was a hastily jerry-rigged affair, invented during the present litigation, first appearing in the record in a depo by the Hastings Dean, and hastily (so to speak) applied by the College to all the other RSOs while this litigation was on-going. According to the majority, it is by the litigation-driven "all-comers policy," not the Nondiscrimination Policy that was actually applied to CLS, that Hastings's policy must be judged.

    The dissent (in what the majority labels "a one-sided summary of the record evidence," fn. 29) does not buy it:
    This [the "all-comers policy"] is not the policy that Hastings invoked when CLS was denied registration. Nor is it the policy that Hastings now proclaims—and presumably implements. It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010. Why we should train our attention on this particular policy and not the other two is a puzzle. But in any event, it is clear that the accept-all-comers policy is not reasonable in light of the purpose of the RSO forum, and it is impossible to say on the present record that it is viewpoint neutral.
    The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason that a state-imposed accept-all-comers policy would violate the First Amendment rights of private groups if applied off campus. As explained above, a group’s First Amendment right of expressive association is burdened by the “forced inclusion” of members whose presence would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Dale, 530 U. S., at 648.
    There can be no dispute that this standard would not permit a generally applicable law mandating that private religious groups admit members who do not share the groups’ beliefs. Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.

    Nonetheless. The majority concludes with:
    Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.
    Let us pray. Erm, is that cool with the Nondiscrimination Policy? The "all-comers policy"? Whatever policy Hastings has this week?

    :: David M. Wagner 7:50 PM [+] ::

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