As you probably know, a couple of days ago the Supreme Court decided Christian Legal Society of Hastings College of the Law v. Martinez. The court ruled 5-4 that the Christian Legal Society (CLS) did not have a constitutional right to an exemption from the school's diversity policy.
Hastings' anti-discrimination policy requires officially recognized student clubs to allow any Hastings student to join. Unofficial clubs could meet at Hastings and use bulletin boards to communicate, but they could not use the Hastings name, receive student activity funds, or get official school recognition. CLS adopted a rule saying that a student could not join its group if she or he was gay, sexually active and "unrepentant." It also said students who did not agree, among other things, that Christ was God and that the Bible is the word of God, could not be members.
Because CLS refused to let some Hastings students join, the school refused CLS's request for official recognition. CLS sued, saying correctly that since Hastings is a state school (part of the University of California), it has to comply with the First Amendment. CLS then claimed that since the First Amendment protects its right to disapprove of gay people and people of faith with whom they don't agree, the anti-discrimination policy had to give way.
The court disagreed. Writing for the majority, Justice Ruth Bader Ginsburg pointed out that Hastings was not saying that CLS and its members couldn't speak or meet at Hastings. It was instead saying that they could not use Hastings' name or get a subsidy. So this was not so much a suppression of speech as a denial of support. The court said Hastings had legitimate reasons for the diversity policy — encouraging exchanges, cooperation, and tolerance. Finally, the court said that Hastings' policy was "viewpoint neutral." Indeed, the court said since it is an "all comers" policy, it was about as neutral as a policy could get.
The Hastings suit was one of many brought against state schools around the county by chapters of CLS. The cases are a not terribly subtle campaign to begin to establish a constitutional right to discriminate against LGBT people in general.
CLS hoped to convince the courts that since condemnation of LGBT people is an idea protected by the First Amendment, "expression" of the idea in the form of discriminating against LGBT people would be protected "expression" as well. The idea has a certain simple-minded appeal: after all, what purer way to articulate an idea than by doing something that puts it into action? But ultimately this argument is self-destructive. If any act carrying out an idea were protected speech, virtually any law could be met with a spirited First Amendment defense as long as you believe in what your did: misleading people about the loan documents they're signing, shooting your boss, and so on. CLS and the lawyers behind the strategy hoped to get around that problem by ultimately establishing a special category of protected expression for anyone who believes for religious reasons that being gay or trans is wrong.
The Hastings case doesn't completely derail CLS's campaign, at least not in theory. It was critical to CLS to be fighting a policy which explicitly forbids LGBT discrimination — their "viewpoint" — for it to make the speech claim the way it wanted. Many of the other CLS cases, some of which are still in process, do involve policies like that.
Still, I doubt we'll see another CLS case at the Supreme Court. The rest of the schools, if they are smart, will quickly change their policies to look like the Hastings "open to all" policy, already approved by the court. That should end the university cases.
And I suspect the Martinez case is a serious blow to the campaign to establish a religious constitutional right to discriminate against LGBT people in other contexts. State law schools, and Hastings in particular (because of where it is), may have been the best shot at that The harm in allowing discrimination by a law school club doesn't look terribly serious — it's hard to believe that many LGBT students really want to join CLS. And the First Amendment is at its strongest in universities. The decision does not mean that the Courts will always refuse to recognize a religious right to discriminate. If the government tried to compel a religious organization to admit LGBT people — or anyone else — the case would likely go the other way. If CLS couldn't win a broader right to discriminate here, it is going to have a hard time getting to its ultimate goal — persuading courts that anyone can use religion as an excuse to deny gay people jobs, homes, or service in businesses and restaurants.
One final point: in rejecting the idea that denying special benefits to CLS was unconstitutional, the court invoked cases at the core of its doctrine on discrimination and free expression. Being given the ordinary treatment may not seem like such a big deal. But that hasn't always been the case — the Supreme Court refused to grapple with many of these cases in the Boy Scouts decision, and lower courts have a maddening tendency to find reasons why the regular rules don't apply in LGBT cases (the New York marriage case made up a whole new set of baffling constitutional rules just for us). It was nice both to see the court go that core doctrine here, and to just assume that was the thing to do. Martinez may well prove to be a more important turning point in the fight for equal treatment than anyone, least of all CLS, could possibly have imagined.
