Academic journal article
By Willems, Jack
Harvard Journal of Law & Public Policy , Vol. 34, No. 2
Our First Amendment rights are bedrock principles of our nation's constitutional structure. (1) Because public universities and schools are operated by the state, "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (2) The Supreme Court has also said that the First Amendment freedom of association guarantee includes a right for groups to set membership standards. (3) In a limited public forum, however, the state may impose reasonable restrictions on speakers and content so long as the restrictions are viewpoint neutral and reasonable. (4) Last term, in Christian Legal Society v. Martinez (CLS), (5) the Court held that, as conditions for recognition as a registered student organization (RSO), a public university may require a Christian group to accept as members non-Christians and individuals who engage in homosexual conduct. (6) Because an organization that cannot control its membership cannot control its message, the state discriminates against the content of such an organization's message when it attempts to control the organization's membership requirements as a condition for entrance into a limited public forum. Applying an all-comers rule does not cure this defect because such a rule discriminates against the viewpoint that membership criteria is part of the message. (7) Such a policy is invalid, not only because it discriminates against a particular viewpoint, but also because it discriminates against a viewpoint that is specifically and uniquely protected by the First Amendment's freedom of association. The Court's opinion in CLS dramatically undercuts the freedom of association. The Court unjustifiably departed from precedent and merged the speech and association rights of the Christian Legal Society (CLS).
Hastings College of the Law requires student groups desiring financial assistance from the law school and access to school channels of communication and facilities to become RSOs. (8) To become an RSO, an organization must abide by Hastings's nondiscrimination policy, which the school interprets to mean that student organizations must accept any student who wishes to be a member. (9) In 2004, a preexisting student organization at Hastings became affiliated with a national group, the CLS. The national CLS requires that members of local chapters sign a statement of faith confirming their belief in the tenets of Christianity and a pledge to not participate in sexual relations outside of heterosexual marriage, (10) When CLS submitted its application for RSO status, the law school rejected the application. The school explained that, by barring students based on religion and sexual orientation, CLS was not in compliance with the school's nondiscrimination policy. (11) CLS filed suit against various law school officers and administrators alleging that the school's refusal to grant RSO status to CLS violated its rights to free speech, expressive association, and free exercise of religion. (12) The district court granted the law school summary judgment, finding the law school's policy both reasonable and viewpoint neutral (13) On appeal, the Ninth Circuit affirmed the district court in a short, unpublished decision. (14)
The Supreme Court affirmed. (15) Writing for the Court, Justice Ginsburg first rejected CLS's request to consider the nondiscrimination policy as written, rather than as interpreted by the law school, because CLS had stipulated at the summary judgment stage that the school's policy was an all-comers policy. (16) Litigants are entitled to have their case tried upon the assumption that stipulated facts have been established, Justice Ginsburg said, and CLS therefore could not escape from the consequences of its stipulation. (17)
CLS argued that Hastings's policy violated both CLS's freedom of speech and freedom of association. Applying the Court's limited public forum precedents to the freedom of speech claim, Justice Ginsburg stated that any restriction on access to such a forum "must be reasonable and viewpoint neutral. …