Tag Archives | Christian Legal Society v. Martinez

More on Christian Legal Society v. Martinez

David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:

I want to focus my response on one item [from Volokh’s previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:

The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which … subsidizes … racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)

But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial

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Should Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding?

David French of the Alliance Defense Fund responds further to my posts about Christian Legal Society v. Martinez. I much appreciate David’s thoughtful reactions on this, and I’d like to continue the conversation.

Here’s David’s argument slightly abridged:

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.” In fact, it’s hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups’ access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion “gag-rule”) is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

With language that sweeping and decisions that consistent, I would say that it’s an open question as to whether the access to facilities by expressive associations could even be considered a “government benefit” as

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Christian Legal Society v. Martinez and the Court’s University Speech Decisions

David French writes at National Review Online:

I don’t have time to detail Eugene’s argument in all its complexity, but the one sentence summary is: Public universities are not constitutionally compelled to provide government benefits (like room access and student fee funding) to “discriminatory” Christian student organizations…. [Here is] his post’s primary shortcoming:

Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).

Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.

Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian

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The “Purpose of the Program” Argument and Christian Legal Society v. Martinez

One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?

The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying.

Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, [...]

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Why No-Discrimination-Based-on-Religion Conditions for Government Benefits Aren’t Viewpoint-Discriminatory

David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.

But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.

As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.

I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ [...]

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More on Christian Legal Society v. Martinez

In 2008, Eugene, Andy Koppelman, and I appeared on a Federalist Society panel on “Freedom of Speech v. Antidiscrimination Law.”  It so happens that I was asked to address the question raised in Martinez, whether a public university may ban a  student group from discriminating on the basis of sexual orientation.  My analysis is a bit different than Eugene’s below. Here’s the transcript, which is available at 31 North Carolina Central Law Review 207 (2009), Westlaw 31 NCCLR 207:

Let’s take our second example, on whether a student group can be denied university funding because it discriminates based on religion or sexual orientation in choosing its officers or members. So let’s assume this is a public university and the funding is therefore akin to the Rosenberger case. This case says that you have to be viewpoint-neutral in your funding, which means the First Amendment applies. The first question is, does the university have a policy that all student groups must be open to all students? If you want to run a student group, if you want funding, everyone has to be allowed to have equal access to that group. If so, I think there’s no First Amendment issue.
I think the university could have that policy if it considered its student groups to be part of the educational experience. Just like I, as a professor, can’t exclude people from my class on any particular basis, if you have a policy that student groups couldn’t do that, I think that would be fine. I think it would be a foolish policy. So, for example, if a student gay group in University of Mississippi is forced to allow conservative Christians to be members and officers, the conservative Christians could take over the group and change the basis of the group
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No Duty To Subsidize Student Groups’ Discriminatory Officer and Member Selection Decisions

The Court has agreed to hear Christian Legal Society v. Martinez, and to decide whether public universities may open up various student group benefits — funding, access to classrooms, and the like — only to groups that don’t discriminate based on race, religion, sex, sexual orientation, and the like.

1. To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message. I also think that, as a policy matter, public universities should leave groups — even those they support — free to discriminate based on criteria that are relevant to the group’s mission, such as religion, sexual orientation, and, where appropriate, race and sex. Allowing such groups would do more for the cause of genuine diversity of perspective than would any attempt to force integration of those groups.

2. But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.

Let’s set antidiscrimination rules aside for a moment, and consider a university rule that gives benefits only to groups that are run by students. I take it that this would be pretty clearly constitutional, because it involves the university’s preserving university resources for the benefit of students. Yet of course groups have a First Amendment right to select nonstudents as their leaders, and may have good reason to do so. They have a constitutional right to associate — but not a constitutional right to get government benefits for their [...]

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Ideological Groups Being Taken Over by Those Hostile to the Underlying Ideology

A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):

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.

Another commenter, EMB, responded:

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?

I can’t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn’t apply here, and based its reasoning partly on CAN’s First Amendment rights to expressive association.

I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should — as a matter of policy — allow ideological student groups to discriminate based on members’ [...]

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Supreme Court Agrees to Hear Expressive Association / Government Benefits Case

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. [...]

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