Hastings and Non-Discrimination Survive

          Despite her husband's death yesterday, Justice Ruth Bader Ginsburg was at the Supreme Court today to announce the decision in Christian Legal Society v. Martinez, the Hastings Law School case in which a Christian student group sought official recognition while denying membership to gay students. Hastings, however, had an all-comers policy that required official student groups to accept all students who wanted to be members. Consistent with her long career defending civil rights and equality, Ginsburg ruled for the law school.   

          Ginsburg posed the legal question narrowly--May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?--and answered it yes. In First Amendment terminology, Hastings' policy was a reasonable, viewpoint-neutral condition on access to the student-organization forum.  In common-sense language, the Constitution does not require the law school to fund student groups that discriminate against gays in the name of religious freedom. Ginsburg was direct in identifying what the case is really about: CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. 

          CLS remains free, as it always was, to define its membership by excluding gays, non-Christians, and advocates of homosexuality as a student group without official recognition. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities, reminded Justice John Paul Stevens' concurrence. 

          A factual issue awaits possible future resolution in the district court. Although CLS stipulated to Hastings' all-comers policy before the litigation, on appeal it argued--contrary to its own stipulations--that in practice the policy discriminated against religious groups only. Fortunately Justice Ginsburg reject[ed] CLS's unseemly attempt to escape from the stipulation. The dissenters did not, and wrote an opinion contrary to the stipulations. 

          CLS remains free to argue in the district court that the all-comers policy was pretextual. They lost by a 5-4 vote. Will someone ask former Harvard Law School Dean Elena Kagan if she would have voted for the school or the students?