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Christian Legal Society Loses, 5-4, in Major Supreme Court Case

More information will be forthcoming as the decision and dissents are read and analyzed, but here’s a quote from Michael McConnell—who argued for CLS—from an earlier interview with Patheos.

There are over sixty registered student groups on the Hastings campus, and when the Christian Legal Society applied to be one of them, it was told that Hastings could not grant them the same status as other groups because their insistence that their officers and those who vote for their officers subscribe to a statement of Christian beliefs amounted to discrimination on the basis of religion and sexual orientation.

The litigation history is complicated because Hastings shifted its rationale for disapproving CLS in the midst of the litigation. When CLS was denied, they were told it was pursuant to a written non-discrimination policy, and they had discriminated on the basis of religion and sexual orientation. Yet once the litigation started, about a month into the discovery process, Hastings shifted and said their policy is actually that all student groups have to be fully open, including their leadership and voting membership, to all students. Later this “all-comers” policy was refined yet again to the claim that you cannot discriminate on the basis of status or beliefs, which means that groups are specifically not allowed to confine their membership to people who believe in the fundamental purposes of the organization.

This is a very strange policy. So far as we can tell, it has not been adopted by any other public university or public law school in the country. It’s by no means clear that Hastings even applies it at Hastings. There are something like eight student organizations who were allowed to register in the same year as CLS whose bylaws are in violation of an all-comers policy, yet it was never suggested that any of them were in violation.

When we point this out in our brief, Hastings’ response is “Yes, but CLS is the only one whose bylaws violate one of the specific non-discrimination categories.” Which of course is our point: it has never been about an all-comers policy, which is a late and for-litigation-only concoction of the law school. It has always been about discrimination on the basis of religion or orientation.

Here are a couple of pieces by CT for background reading:

Supreme Court on Major Discrimination Case: ‘Huh?’ | Before the justices can render an opinion in the Christian Legal Society dispute, they’ll have to figure out what the facts are. (Apr. 20, 2010)

The End of Religious Freedom? | The nightmare scenarios could very well unfold, but they are not the last word. A Christianity Today editorial (Apr. 19, 2010)

Update: From ScotusBlog:

Opinion by Justice Ginsburg rules that rights of law school organization weren’t violated when its access to law school facilities was conditioned on its making membership and leadership positions open to students who rejected its core beliefs. 5-4 divide on ideological lines (with Kennedy joining the liberals). Dissent by Justice Alito.

Update: This page by CT will be updated throughout the day. Quote from Justice Alito: “I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.””

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