The case is Christian Legal Society v. Martinez, and it could be an important decision on First Amendment law and government benefits more broadly. Its implications would quite likely also extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes. I’ve written about the question in my Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006), and also in this post; I’m on the run now, but I hope to blog more about the subject this week.
ZeroHero says:
Will this be decided this term?
December 7, 2009, 10:50 amTim says:
Wow, a one page opinion? Kozinski denies the right to freedom of association in a single paragraph? What is the world coming to? The Supreme Court refused to hear Truth v. Kent, the case he sites, which is a high school case and not analogous to a university. Perhaps it’s a good thing, since this case appears to have better facts (specifically, adult students).
I hope this results in a judicial beatdown of the 9th Circuit.
December 7, 2009, 12:03 pmSara says:
If I understand the issue that Eugene discusses in his law review article, a state school can require open membership rules on all campus organizations, consistent with the first amendment. Why is the 9th circuit wrong, then?
December 7, 2009, 1:07 pmGreg Scott says:
ADF and CLS issued a joint press release this morning:
High Court will hear case involving right of religious student organizations to determine their own leadership
…
December 7, 2009, 1:13 pmptt says:
In his article, Prof. Volokh states:
From the BSA own website presenting their legal policies:
Hmmm… already we’re talking about different things.
December 7, 2009, 1:41 pmptt says:
Sara,
Because homosexuality is involved and when that’s the case, everything goes topsy-turvy.
That’s only part of the reason we’re so dangerous.
December 7, 2009, 1:43 pmtroll_dc2 says:
Would a reversal by the Supreme Court mean that any organization would be entitled to government funding and that the government could not impose any standards? If the answer is “no,” then what would those allowable standards be?
I note that the school’s policy did not prevent students from joining with one another to form their group and to pursue its goals. The policy simply deprived the society of the same subsidy and benefits that other groups got, and it did so because the society refused to comply with the school’s policy. If the school was wrong, how could it properly justify denial of support to a campus branch of the KKK?
December 7, 2009, 2:14 pmTim says:
The government cannot favor or subsidize one method of speech over another, unless it can satisfy the strict scrutiny doctrine which is explained in the brief.
A public school is staffed by government employees, who are constitutionally mandated to respect the First Amendment rights of their students. Content-based distinctions on which organization gets recognition are presumptively unconstitutional unless they can satisfy the strict scrutiny doctrine.
The “policy” to which you refer denies the students their right to expressive association, a right that has been affirmed repeatedly at all levels by courts, including the Supreme Court. In doing so, it violated the rights of the students in the Christian Legal Society by instituting and enforcing a policy that violated their constitutional rights as applied to them.
Why this is important is a better question. Imagine that anyone, regardless of religious belief, were allowed to become voting members of the “Christian Legal Society” or the “Muslim Students’ Association” or any other such group. What would stop people who disagreed with the group’s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.
The reason people have a hard time grasping this concept is that it is intentionally discriminatory. The right to freedom of assembly, free speech, and freedom of association and their exercise sometimes demands that certain people be excluded from your association so that you can maintain your institutional voice. This is no exception. If the CLS cannot discriminate against who may be a voting member (even while allowing anyone to participate in their activities), then they will enjoy no freedom of association at all.
The analogy of the KKK is a red herring, but interestingly, it does bring up a good point. How unpopular must the content of their speech be in order to lose constitutional protection? From my reading of case law and the literature on the subject, only things like obscenity and the fighting words doctrine (and other, similarly narrow categories of speech) allow for exceptions to First Amendment protection. Do racists have free speech? This blog post of mine (with quotes from Professor Volokh) attempts to respond to that question. And because I don’t think my authority is sufficient to convince you, I suggest that you read National Socialist Party v. Skokie, a 6-3 landmark decision by the Supreme Court of the United States that makes the point pretty clear that even racists have free speech rights. Interestingly, the counsel of record in the case was a Jew, I’m told.
If a swastika isn’t fighting words, I’m pretty sure this CLS case is a slam dunk. I’m actually really glad that SCOTUS decided to take this case. I was disappointed when they denied cert in Truth v. Kent, but this case has better facts, as Truth is a high school case and this one involves only adult law students, who unquestinably have First Amendment Protection.
December 7, 2009, 2:45 pmTim says:
Last link should go here.
December 7, 2009, 2:50 pmtom says:
This is about more than just allowing gays in the group. The statement of Faith that must be signed by members/officers is not consistent with the beliefs of several Christian denominations. The Trinity, the Divinity of Jesus, Regneration & the Dinvine inspiration of the bible are not universal beliefs. The requirement of the statement itself might be interpreted as an “oath” and therefore against the beliefs of by other groups.
It seems that no gays and only certain Christians are acceptable members.
December 7, 2009, 2:58 pmmischief says:
One would be kinda interested in hearing your definition of “Christian”
December 7, 2009, 3:38 pmmischief says:
BTW, if Christian does not require “The Trinity, the Divinity of Jesus, Regeneration & the Divine inspiration of the bible” what is the term you want to use for that religion whose hallmarks definitely do include “The Trinity, the Divinity of Jesus, Regeneration & the Divine inspiration of the bible” — which include Protestants, Catholics and Orthodox?
December 7, 2009, 3:46 pmTweets that mention The Volokh Conspiracy » Blog Archive » Supreme Court Agrees to Hear Expressive Association / Government Benefits Case -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Supreme Court Agrees to Hear Expressive Association / Government Benefits Case: The case is Christian Legal Soc.. http://bit.ly/4rRgBX [...]
December 7, 2009, 3:59 pmJoe says:
Tim,
I think you are missing a bit of nuance. The gov’t is not prohibiting the CLS from meeting or speaking or restricting its membership to Christians. All it is saying is that if it is not open to all students (regardless of their beliefs) we are not going to give you money. That is a pretty big distinction. I don’t understand why Christians (and I am one and I am a CLS member) so often want the gov’t to affirmatively sanction their beliefs.
Unless you can demonstrate that a school is funding Q-Law (or whatever that is called these days) and that Q-Law is refusing to let straight people who think marriage is between a man and a women join the group, there is no discrimination.
The right to free speech does not come with the right to have everyone else pay for it.
December 7, 2009, 4:17 pmCJColucci says:
Content-based distinctions on which organization gets recognition are presumptively unconstitutional unless they can satisfy the strict scrutiny doctrine.
It’s viewpoint-based distinctions, not content-based distinctions, that are presumptively unconstitutional. What’s the viewpoint-based distinction in an “everyone has to let everyone join” policy?
December 7, 2009, 4:52 pmJiffy says:
Let’s suppose that the school supports student organizations because it believes that doing so provides educational benefits to their members. The school is permitting student organizations to distribute government-provided benefits. Why can’t the school require that those benefits be distributed on a non-discriminatory basis? Doesn’t the government routinely place non-discrimination conditions on government funding?
December 7, 2009, 5:13 pmU.S. Supreme Court agrees to hear lawsuit against UC-Hastings « Academic Freedom File says:
[...] talking about this case? The Volokh Conspiracy NRO:Phi Beta Cons The Chronicle of Higher [...]
December 7, 2009, 5:24 pmEMB says:
I’ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?
(It’s certainly not what happened in the case in question–one Christian lesbian wanting to join a bible study club is far from a hostile takeover of the club by atheists or some such.)
December 7, 2009, 5:49 pmTim says:
The viewpoint is “homosexuality is wrong.” Allowing a regime in which a political takeover by dissenters can easily and quickly destroy the institution (CLS’) expressive speech mission due to a specific viewpoint.
Chief Judge Kozinski suggests that such a rule is viewpoint neutral. I find that very hard to believe. Such an assertion would suggest that discussions of the morality of human sexual orientation are not permissible.
I’m pretty certain that if Hastings is anything like my school, LGBT clubs are the norm, and they are very vocal about their views on human sexuality and the morality, in particular, of homosexuality.
So long as such a discussion is permitted, this is not a content based distinction. The CLS is being censured for its viewpoint, the politically unpopular belief (one that I do not share, by the way) that homosexuality is wrong.
Find me a university campus anywhere that human sexuality and its morals cannot be discussed and then you can call this content based. Until then, I’m going to call it like I see it–silencing one viewpoint in a debate.
December 7, 2009, 6:04 pmTim says:
CJ,
On re-read, it appears that I’d mixed up the two in my first comment. You are correct, the correction is above.
I’m working on a post for my own blog which will go into greater detail.
Thanks!
It appears that you’ve missed a key point. If the government is dishing out money (and recognition) for organizations, it must be done in a manner that is viewpoint neutral.
December 7, 2009, 6:12 pmBZ says:
Um, look again. You may be right in a few limited circumstances, but the basic rule is that government need not subsidize speech with which it disagrees, and can make specific, viewpoint choices. Neutrality is NOT required. Maher v. Roe, 432 U.S. 464, 474 (1977)(State may favor childbirth over abortion and allocate public funds to implement that judgment); Webster v. Reproductive Health Services, 492 U.S. 490, 510 (1989)(if state can allocate funds to implement value judgment, it may also allocate other public resources, such as staff); Rust v. Sullivan, 500 U.S. 173, 194 (1991)(legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right). And so on. “Petitioners’ assertions ultimately boil down to the position that if the government chooses to subsidize one protected right, it must subsidize analogous counterpart rights. But the Court has soundly rejected the proposition.” Rust, 500 U.S. at 194.
December 7, 2009, 6:38 pmSupreme Court Grants Cert in Christian Legal Society v. Martinez « Tim Nuccio's Blog says:
[...] of expressive association, which is available here. Professor Volokh has also blogged this issue here and I am sure we will see ongoing coverage as it proceeds to oral argument. David French is [...]
December 7, 2009, 7:02 pmSara says:
Except they can still meet and express themselves. The government is not preventing them from doing so. In fact, this club, according to the brief, still met at the school and did everything it otherwise would have done.
December 7, 2009, 7:49 pmmischief says:
Then, in the economic times, the school should defund all student groups in interests of keeping the tuitition low. It doesn’t prevent students from meeting and expressing themselves.
December 7, 2009, 8:10 pmtom says:
mischief said:
To name a few…the LDS Church, 7th Day Adventists, Jehovah’s Witness, Unitarians, & Christian Scientists don’t recognize the stated definition of the Trinity in the CLS Statement of Faith, and they certainly consider themselves Christians.
I can certainly site other examples where people who consider themselves Christian would object the the CLS statement of faith. That “statement” is heavily slanted towards evangelical protestant views.
December 7, 2009, 8:21 pmTim says:
Exactly. This is just about the only way that this could be defended.
Perhaps my claim was too broad, but it seems your fact pattern is pretty far from any that I would have suggested.
My suggestion is that you read this case, which will cover the issue, specifically:
The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral.
The case is Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), which I think you’ll agree has facts much closer to question at issue (viewpoint neutrality with respect to student fees) than abortion cases or some other unrelated manner.
Personally, I’d prefer my school defund all student groups. The current board that dishes out the money has already stated in uncertain terms that they’d never fund us anyway. This actually would be a much easier question to answer if they didn’t force us to pay the fee and then dish out the funds in a viewpoint-specific and political manner.
December 7, 2009, 8:29 pmloki13 says:
Tim,
I think you’re missing both the forest and the trees. There is no viewpoint discrimination (content-based) by the government; they are simply saying that if you want the government to fund a student group, then that student group must be open to all students. Seems pretty non-controversial. Flipped another way, the LGBT group cannot keep straight people out, the Muslim group cannot keep out Jews, and the student KKK chapter can’t keep out blacks.
If the groups did want to do that, then they could always be private groups. But a requirement that student group be open to all students in order to receive government funding does not seem onerous, and it is certainly content-neutral.
December 7, 2009, 8:45 pmTim says:
I’m well aware of that fact, on account of being the President of a shooting club that cannot ban convicted felons, wife beaters, mentally defective persons, or other categories of persons who cannot participate in our activities because federal law bars them from doing so.
With that said, if, say, the international students who are not here on a visa that allows them to own firearms wanted to, they could join my club, vote me out of office, and disband my club merely because they didn’t agree with the idea of having a shooting club on a college campus. Since the policy does not allow me or my members to exercise our right of institutional freedom of association, the mere existence of my club depends simply on enough dissenters from joining and voting the club out of existence.
Apply that same logic to habitat for humanity, the Korean Students for Christ, or whoever else, and it becomes abundantly clear to me how easy it’d be to abuse this policy merely for the purpose of silencing your adversaries.
Without institutional freedom of association, there can be no meaningful exercise of the right to assembly, which is a clear violation of the students’ First Amendment rights. It should further follow that the chilling effect of being a member of an organization with an unpopular viewpoint that has to live in fear that it can be overtaken and voted out of existence is not an issue that can survive any First Amendment analysis.
And putting all of the jurisprudential doctrine aside, why should any government institution be able to tell you who your friends are? While the funding is an issue, the central issue in most of these freedom of association cases is the ability to use the university’s non-monetary resources, like being able to rent a classroom for a period of time, or, in the case of my university, even the stadium if you had the money to rent it and wanted to stage a large enough event (which student organizations have done before).
Denial of official recognition has way more consequences than merely removing a source of funding for student groups. Access to the use of the university’s resources for anything, whether it’s a certain website, servers to make an email listserv, use of university buildings and facilities, etc., all depend on that recognition. And since all students pay tuition, my intuition suggests that denying them the use of university facilities and other resources because they will not agree with your institutionally-mandated viewpoint perhaps violates more than just constitutional guarantees of freedom of expression and assembly, but perhaps 14th amendment guarantees of the right to property as well as opening the door to legitimate equal protection claims.
If you think it’s problematic that our constitution constrains public school administrators, I may perhaps agree with you. But the solution, as I see it, cannot be to allow them, as government officials, to run afoul of the Constitution’s commands. Ideally, we’d get rid of public schools entirely, and all of this would be a matter of private contracts. I suspect even then, though, we’d be forced to answer these questions, because college students are adults, and if the university has any purpose at all, it’s to encourage dissenters and people who think outside the box, not to silence them.
December 7, 2009, 9:17 pmloki13 says:
Tim,
You seem to have a lot of boogeymen in your head, but you need to disentangle the issues:
1. The first is that, theoretically, yes, I guess groups could be overwhelmed by other members. But in practice they aren’t. Why? Because the groups are formed around shared interests. While you live in fear of people coming in to shut down some student group, the fact is that college kids have better things to do with their time- like study, party, and join group that they’re interested in joining.
2. There is no threat of people telling you “who your friends are.” You get to choose who our friends are. You get to choose your own friends. You get to choose your own study groups. You can form any private group you want to.
3. Finally, these are “student groups” first. Student group, funded by the school, exist to serve the “student body”. The school shouldn’t be paying for groups that purposefully keep out other students. At my law school, there were (a few) white members of the BLSA, and several straight members of the LGBT group. There were many non-Hispanic members of HLSA (damn good food!). The world did not end. The ACS was open to everyone, and yet the Federalist Society did not “take it over”- probably because, um, they had the FS.
December 7, 2009, 9:46 pmptt says:
It’s amazing how much trouble one lesbian can cause. I can see why Tim wants the right to keep them out…
December 7, 2009, 9:49 pmTim says:
And so you’re dismissing the legitimate freedom of association claims because your anecdotal evidence finds protections for a right unecessary. I get it now.
Maybe we should get rid of the 3rd Amendment, too. I haven’t seen it used as a defense in a while.
December 7, 2009, 11:47 pmCornellian says:
Given this statement from their cert petition that I have pasted below, it’s a wonder this group has any members at all. How many college students can you find to join a group committed to celibacy outside of marriage?
“A person who advocates or unrepentantly engages in sexual conduct outside of marriage
December 7, 2009, 11:58 pmbetween a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership. A person’s mere experience of same- sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership. CLS individually addresses each situation that arises in a sensitive Biblical fashion. App. 11a-12a.”
jrose says:
Chief Judge Kozinski suggests that such a rule is viewpoint neutral. I find that very hard to believe. Such an assertion would suggest that discussions of the morality of human sexual orientation are not permissible.
The anti-discrimination rules strike me as viewpoint neutral because they equally forbid the Gay Student Alliance from limiting its voting members to those who advocate or practice gay sex.
December 8, 2009, 9:17 amPubliusFL says:
And? I’m not sure what your point is.
December 8, 2009, 9:28 amU.S. Supreme Court to Decide if Law School Can Deny Recognition to Student Chapter of the Christian Legal Society – Cincinnati Lawyers Finney, Stagnaro, Saba & Patterson says:
[...] about the case at The Volokh Conspiracy, Eugene Volokh notes that the Supreme Court’s decision in this case could be an important [...]
December 8, 2009, 10:18 amADF Alliance Alert » Supreme Court agrees to hear Hastings Law School case; right to expressive association on campus hangs in the balance says:
[...] to come. In the meantime, check out initial reactions from UCLA Law professor and noted blogger Eugene Volokh and Alliance Defense Fund Senior Counsel and former FIRE President David [...]
December 8, 2009, 10:58 amClayton E. Cramer says:
It may be hard for you to understand, Cornellian, but there are adults for whom sexual desire doesn’t so control their lives that this rule would be a problem. There are people for whom sex isn’t the central focus of their lives.
December 8, 2009, 11:18 ammischief says:
Jews for Jesus consider themselves Jews. Would you say a Jewish organization is therefore required to consider them Jews?
And given you cite “Unitarians” as Christian — what views do you require before you will consider someone not a Christian?
Your ignorance is showing. It is the groups you are citing as Christian who don’t accept it that are the unusual ones — witness their limited (and rather uniform!) geography and history. The views you objected to are, in fact, Protestant, Catholic, and Orthodox, and in fact Christianity as believed for millennia and across nations.
December 8, 2009, 11:44 am