Sunday, April 18, 2010

The Bizarre Case of Christian Legal Society versus Martinez (Hastings Law School) : Oral Arguments on Monday, April 19, 2010

It is a shame when a law school itself -- which should know better -- applies an alleged policy of blanket non-discrimination in a viewpoint-discriminatory manner, as appears to us to be the case in this legal case, thereby violating students' 1st Amendment free speech rights.

At The Washington Post, Robert Barnes in Supreme Court to consider case against California law school alerts us to the upcoming oral arguments on Monday in Christian Legal Society Chapter v. Martinez,  Docket No. 08-1371, a bizarre freedom of speech case (when one views the line-ups of amicus briefs) involving the University of California Hastings College of Law and the Hastings Chapter of the Christian Legal Society (CLS).

The legal question before the court according to the brief of the petitioner CLS is:
"Whether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments."
The legal question before the court according to the brief of the respondent Hastings Law School is:
"Whether a public university violates the First Amendment by creating a program through which public funds, use of the school’s name and logo, and other modest benefits are made available to student groups that agree to open their membership to “any student … regardless of their status or beliefs,” JA-221¶18, thus ensuring that all students have equal access to all school-funded and school-recognized groups."
The legal question before the court according to the brief of the respondent-intervenor Hastings Outlaw is:
"Whether a public university, in choosing to establish a forum for student groups that receive official recognition and a small subsidy, has sufficient latitude under the First Amendment to establish, as a viewpoint-neutral condition for receiving limited benefits, the requirement that a recognized group be open to all students?"
As Barnes writes:
"A Christian group was part of the landscape for years. But when it decided to affiliate with the national CLS, it was told the group's ban of gays and nonbelievers in leadership positions violated the college's policy and its insistence that all Hastings students be allowed to join any club."
The core of the CLS argument is that such groups as CLS could be threatened if required "to admit as leaders and voting members those who disagree with their core beliefs and viewpoints."

Leo P. Martinez, acting chancellor and dean at Hastings, has been cited as saying that a blanket policy of non-discrimination requires just that result. Quoting Barnes:
"Martinez said he has been asked if the school's policy means that a Jewish organization would have to allow a Nazi sympathizer to join, and his answer is yes. "That's a necessary consequence of being nondiscriminatory," he said. "We accept students of all stripes. We can't do that and then tell some students, 'Listen, there are going to be some aspects of the educational experience at this school that are foreclosed to you.'"
We suggest that such a bizarre view of the law of association is doomed to defeat, and a quick reading of the briefs shows that Hastings Law School does not even apply its own anti-discrimination rules in a non-discriminatory manner but in fact discriminates in its alleged non-discrimination by discriminating against religious groups -- allowing other non-religious groups to limit their leadership to "core" believers.

That is exactly the kind of viewpoint-discriminatory "rule by fiat" that laws against discrimination are intended to prohibit.

How can a law school get into this kind of a mess? Well, they are in the 9th Circuit, which the U.S. Supreme Court almost always rightly overturns, and the 9th Circuit in fact found in favor of Hastings at the appellate level, relying on its previous own obtuse and surely "bad law" holding in Truth v. Kent School District, 542 F.3d 634 (9th Cir. 2008) - see the petition for writ of certiorari which expressly refers to the CLS case, a petition which the U.S. Supreme Court denied, probably because CLS is much the better case from which to pronounce the law.

The purpose of CLS as an organization -- we are, by the way, not fans of CLS -- is to promote its particular message, and such a message is "protected free speech" according to the Supreme Court ruling in Hurley, where Justice Souter wrote for a unanimous court:
"The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment."
The net effect of the Hastings blanket non-discrimination policy with respect to CLS or any other organization is in fact to force organizations to accept contra-thinking members whose own protected free speech can then be expressed in that same organization setting to deny the very principles for which an organization is founded and led.

Smart contra organizations could, according to the 9th Circuit decision in the CLS case, easily fill organizations with hecklers and subversives -- yes, they would even have a "right" to do so.

The extension of this principle to religions as a whole would require tax-exempt (and for that reason "government-aided") Christian Churches to accept avowed Muslims as members and vice versa, a bizarre result. That is why the amicus briefs from nearly every religious corner favor the petitioner CLS in a strange alignment of pros and contras (take a look at the amicus list at

Most of the amicus briefs in support of the respondent Hastings Law School come from educational institutions who -- to our way of thinking -- are grinding their own personal axes, rather than worrying about actual 1st Amendment consequences.

One of the offending briefs here is that of the American Association of Law Schools, which writes:
"Of specific relevance to the case before this Court, each AALS Member school undertakes to “provide equality of opportunity in legal education for all . . . enrolled students . . . without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, disability, or sexual orientation.” AALS Bylaw § 6-3(a). Based on their expertise in legal education and familiarity with their own learning environments, AALS Member schools take varied approaches to student organizations. Some schools do not mandate nondiscrimination rules or open-membership policies for all student organizations, while others have exercised their institutional autonomy to make a judgment of the sort embodied in the Hastings policy. A decision to constitutionalize this area of sensitive educational judgment would rigidify the policy choices of state-supported AALS member schools, and thereby undermine the principles to which the AALS and its members are committed."
Even if one were to give the AALS position credence, a law school like Hastings must then apply a blanket anti-discrimination policy in a consistently anti-discriminatory way. It can not use a discretionary viewpoint-discriminatory system to permit some groups to limit student or leadership membership based on selected criteria, and other groups not. That is so elementary that every law school in the country should have no trouble understanding the basic principle in its correct implementation -- i.e. NO favorites, none.

If the American Association of Law Schools has trouble interpreting the 1st Amendment, then there is no wonder that so much confusion reigns in the American legal sector about basic human rights and freedoms. 1st Amendment protections -- by definition -- are universal and consistent. 1st Amendment protections are not determined by "institutional autonomy", nor do American law schools constitute a "free zone" from the legal dictates of the Constitution, which can  allegeldy be discretionarily "constitutionalized" or not, as the AALS amicus brief suggests. There are no "discretionary" Constitution-free zones in the United States and surely no Constitutional provisions that are turned on or off by the switch of any "autonomous institution".

Equally disturbing to this observer is the amicus brief of the American Bar Association, an institution which from this quarter would seem to have no business taking sides on issues of this nature. It is NOT their job. The ABA amicus brief writes:
"This case involves an effort by a public law school to balance two deeply held values that are central to the ABA’s mission and the mission of our Nation’s public institutions of higher education, but are sometimes in tension: combating discrimination, and protecting students’ First Amendment rights. In striking that balance, the University of California, Hastings College of the Law, like other public institutions of higher education, is called on to reconcile two well-established principles: first, that government may elect not to subsidize organizations that discriminate in ways that undermine the government’s identified mission or conflict with its own messages, and, second, that government may not use its financial assistance to suppress or discourage disfavored speech. Hastings’ student-organization policy strikes a sound and constitutional balance between these values and conforms to both of these principles.... Hastings’ uniform and neutral implementation of its nondiscrimination policy demonstrates that public universities can combat discrimination while taking care not to trench upon students’ First Amendment rights of freedom of speech and association."
The ABA conclusion that the Hastings policies are a sound and constitutional balance between ... values -- to our view misunderstands Constitutional Law. The Constitution is traditionally not viewed as a balance of values -- that is rather a definition of pluralism. The federal system that the U.S. Constitution created is a "check and balance of government branches" (executive, judicial, legislative), not a balance of values. In fact, "freedom of speech" is a "right" contained in "the Bill of Rights" that some people -- mostly untrained in the law -- confuse with their own or other "value" systems. Correctly seen -- as a legal document -- the Constitution is all about the balance of rights. Values are something else. People are constantly reading their "values" into the Constitution, which is not what that document is intended to serve, and that is one of the major problems in Constitutional interpretation. Rights are enduring. Values fluctuate.

The same thing holds true for the "right" not to be discriminated against, which is a "right" and not a "value". People not trained in the law would be forgiven such an error, but those who have been to law school, especially at the ABA, should know better.

The last-quoted sentence above from the ABA amicus brief about the Hastings implementation of its policies can only have been made by someone who has not read the main briefs in the case very carefully, as these demonstrate quite clearly that Hastings does not apply its policies either uniformly or neutrally. That is the whole point of the lawsuit, that the Hastings policies of anti-discrimination are discretionarily viewpoint-discriminatory against religious groups and/or those who favor normal heterosexual relations.

How the ABA can be getting involved in this case -- on the WRONG side, as a matter of Constitutional Law -- is a mystery to us and shows once again that the bar associations in the USA are in need of some reform. Who controls the ABA?

The correct legal standard to apply to the CLS case -- in our opinion -- is voiced in the amicus brief of the Boy Scouts of America, who write about 1st Amendment protections as follows:
"In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), this Court affirmed the rule that “(t)he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” 530 U.S. at 648 (citation omitted). In such circumstances, the freedom to associate may be overridden only if regulation serves ‘“compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”’ Id. (quoting Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)). The Court in Dale applied these principles to hold that the first Amendment protects Boy Scouts’ selection of adult volunteers who observe the Scout Oath and Law. The state may not use nondiscrimination statutes to regulate membership choices which are sincerely related to an association’s expression. Such choices constitute the group’s “method of expression.” Id. at 655." [emphasis added by LawPundit]
That same reasoning applies to the viewpoint-discriminatory blanket anti-discrimination policies of Hastings Law School, which can not rely on those policies "to regulate membership choices which are sincerely related to an association's expression". A Christian group is -- well -- a Christain group. Hence, we see virtually no possibility that the 9th Circuit decision will not be overturned.

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