Private: CLS v. Martinez Recap: A Victory for Government Anti-Discrimination Policy

By Christopher Stoll, Senior Staff Attorney, National Center for Lesbian Rights (NCLR)

On Monday, in Christian Legal Society v. Martinez, the United States Supreme Court rejected a challenge to the University of California Hastings College of the Law's policy requiring that all official student organizations be open to all students. The Christian Legal Society (CLS) argued that Hastings' policy violated its rights to freedom of speech and association. Hastings had declined to officially recognize CLS as a student club because CLS does not permit non-Christians or openly gay, lesbian or bisexual people to be members or officers. CLS was permitted to hold meetings on campus, but was denied eligibility for funding and other university-provided benefits that were available only to recognized clubs.

In a 5-4 decision (pdf) authored by Justice Ruth Bader Ginsburg, the Court held that the First Amendment did not entitle CLS to a "special dispensation" to violate a neutral, consistently applied non-discrimination rule that applied to all other funded student groups. Justice Ginsberg wrote: "In requiring CLS-in common with all other student organizations-to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS . . . seeks not parity with other organizations, but a preferential exemption from Hastings' policy." The majority opinion was joined by Justices Stevens, Kennedy, Breyer, and Sotomayor. Justices Kennedy and Stevens also wrote concurring opinions.

The majority reaffirmed that although the government cannot directly restrict freedom of speech or association unless it has a compelling reason to do so, the government has more latitude when it is "dangling the carrot of subsidy, not wielding the stick of prohibition." It held that the proper constitutional test when a public university imposes conditions on official recognition and funding of student groups is the "limited public forum" analysis, which requires that a restriction on speech or association be upheld as long as it is (1) viewpoint neutral and (2) reasonable in relation to the purposes for which the forum was established. Applying the forum analysis, the Court held that Hastings' policy easily withstood constitutional scrutiny. The Court noted that it is "hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers."

Justice Alito, writing for the four dissenting justices, harshly attacked the majority's decision as establishing a new rule that the First Amendment does not protect speech that offends "prevailing standards of political correctness in our country's institutions of higher learning." Justice Ginsburg responded to this charge by observing that Hastings' policy was "justified without reference to the content [or viewpoint] of the regulated speech" and that the policy did not restrict CLS's right to express its opinions, only its conduct in admitting members.

The Court's decision is significant both for its doctrinal contribution to First Amendment law and its practical impact for government entities that do not wish to subsidize private discrimination using public funds. From the perspective of First Amendment doctrine, the most important aspect of the Court's opinion is its holding that forum analysis - not strict scrutiny - is the proper constitutional test for a claim that a university's student organization program violates students' rights to freedom of association. The Court had previously held in 1995 that a restriction on the content of speech in such a student forum need only be viewpoint neutral and reasonable, but had never articulated the standard of review for a claim that such university rules burden students' rights to associate with people of their choice. Relying on cases like Boy Scouts of America v. Dale, CLS had argued that Hastings' policy amounted to "compelled association" and should be subject to strict scrutiny. Rejecting that argument, Justice Ginsburg's majority opinion observed that it would be "anomalous" for a university rule to survive the limited public forum test when considered as a speech restriction, only to be struck down as a violation of the right of expressive association. The Court therefore sensibly concluded that free speech claims and expressive association claims are subject to the same standard - the limited public forum test.

From a practical perspective, the decision means that public universities and other government entities can require groups that receive public funding to comply with viewpoint-neutral non-discrimination policies. Colleges can require official student groups to open their membership to all students, including LGBT people, people of color, women and people with disabilities. More generally, the Court's analysis indicates that when the government provides funding to private groups, it can require that the funding recipient agree not to discriminate. As the Court noted, California law, like the law of many states, specifically prohibits public funds from being used to support private discrimination. The Court's decision strongly supports the constitutional validity of such funding restrictions.

The Court also addressed another issue that has played an important role in litigation concerning discrimination against LGBT people. The Court rejected CLS's argument that it was not discriminating against potential members on the basis of "sexual orientation," but was merely enforcing its moral view that sexual conduct should occur only in the context of a marriage between a man and a woman. This distinction between status and conduct has long been used by opponents of LGBT rights, who claim that laws and policies disfavoring same-sex conduct are not discriminatory. In rejecting the status-conduct distinction, Justice Ginsburg's majority opinion echoed the Court's 2003 decision in Lawrence v. Texas that a sodomy law prohibiting sodomy only between same-sex partners discriminated against gay people even though, on its face, the law targeted only conduct. The Court's decision provides strong support for constitutional challenges to laws that have the effect of discriminating against LGBT people even when they speak in terms of conduct rather than status, such as the military's "Don't Ask, Don't Tell" policy.

The Court's decision represents a significant victory for government anti-discrimination rules and a serious setback for groups that have long advanced the dangerous and radical proposition that anti-discrimination laws violate the First Amendment. The Court's holding, joined by a solid and unified majority of the justices, should help prevent efforts by conservative legal groups to diminish anti-discrimination protections for minority groups.

Equality and Liberty, First Amendment, LGBTQ Equality, Supreme Court