Even the Los Angeles Times can agree with Hadley Arkes that the Supreme Court decision in Hastings v. Martinez is bad news:
Even if it passes constitutional muster, the “all comers” policy could lead to bizarre results, such as a Jewish group having to admit Christians or a pro-life group being required to let abortion-rights activists seek leadership positions. The best argument against the policy is that it actually undermines diversity by making every student group potentially interchangeable in its membership. A better way to promote diversity of viewpoints is to allow groups on campus to define their beliefs — including religious beliefs — and compete for the allegiance of students. Hastings should give it a try.
June 30th, 2010 | 2:43 pm
Meghan! I wasn’t sure how else to contact you but I just wanted to give you a heads up that you’ve misnamed the case–it’s actually Christian Legal Society (or CLS) v. Martinez, not Hastings v. Martinez. Leo Martinez is the Dean of Hastings College of the Law and was the named respondent in the Supreme Court case.
June 30th, 2010 | 3:00 pm
I have to admit I’m a bit confused. I agree that Hastings’ “all comers” policy makes little sense. No group can count on a continued sense of purpose as any opposed group can undermine just by joining.
But I don’t understand why such a senseless policy at a private college reaches the levels of the Supreme Court. I get that it has to do with freedom of association, but doesn’t the college have that same freedom? Can someone point me to a good roundup of the issues involved?
June 30th, 2010 | 3:18 pm
Groups only have to abide by the “all comers” policy if they want to receive university (state government) funding — unofficial student groups can discriminate as much as they like. That is how the Christian Legal Society will continue to exist on campuses across the nation.
June 30th, 2010 | 4:29 pm
“Groups only have to abide by the “all comers” policy if they want to receive university (state government) funding — unofficial student groups can discriminate as much as they like.”
Right – which means in practice that the only way to receive government funding will be to adhere to the current government definition of what is “discriminatory” and what is not.
Which surely includes religious and moral beliefs and therefore is a favoritism, (and indeed an economic promotion,) by the government of one set of beliefs over another.
June 30th, 2010 | 5:15 pm
Thank you Miriel. To be perfectly clear, the case name is Christian Legal Society Chapter of the University of California, Hastings College of the Law, aka Hastings Christian Fellowship v. Martinez et al.
Mike: Hastings is a public university. CLS claimed that their first and fourteenth amendment rights had been violated because Hastings had refused to grant them recognized student organization status because CLS violated the university’s Nondiscrimination Policy which prohibits discrimination based on race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation, specifically by barring students actively practicing a homosexual lifestyle. CLS argued that this last requirement specifically targets religious organizations. For further information I would recommend reading Hadley Arkes’ July 29th On the Square piece or checking out The Mirror of Justice Blog http://mirrorofjustice.blogs.com/mirrorofjustice/
June 30th, 2010 | 8:24 pm
JDD,
How much money does it take to run the Christian Legal Society at Hastings? You need members, a meeting area, and something to do and/or discuss — all of which can be done for free.
Incidentally, you might want to read the “Christian Legal Society Member Benefits” page. I don’t see anything that requires all that much funding:
1. To honor the Lord by associating publicly with a national network of approximately 3,000 lawyers, judges, law professor, law students and associated friends committed to loving and serving Jesus Christ in all we do and say in the practice of law, and advocating biblical conflict reconciliation, public justice, religious liberty and the sanctity of human life…
http://www.clsnet.org/membership/christian-legal-society-member-benefits“
July 1st, 2010 | 3:53 am
Yes, just as real as the danger that an operative Democrat will run for President of the US as the primary Republican candidate. I’m so scared!!
Hastings v. CLS is simple. Hastings has a non-discrimination policy. CLS wants to discriminate. CLS sues Hastings claiming it discriminates against those who discriminate. Yes, whites at Hastings can join black student group. Yes, Christians can join the Jewish student group. They are not REQUIRED to let them hold leadership positions, they must vote. If CLS members can’t vote a Christian leader in then that’s pretty pathetic.
July 1st, 2010 | 3:57 am
JDD, you’re mental. The all-comers policy specifically defines discrimination….cannot discriminate against race, religion, national origin, sex, disability, or sexual orientation. Nope, sorry morality is not listed.
Strange how Jesus taught tolerance and acceptance and CLS teaches bigotry and intolerance. However, not so surprising when you realize that the KKK was primarily Protestant – another form of Christianity. These groups having nothing to do with their own ideology.
July 1st, 2010 | 9:55 am
R. Hampton,
“How much money does it take to run the Christian Legal Society at Hastings? You need members, a meeting area, and something to do and/or discuss — all of which can be done for free.”
The point isn’t whether the student organization can figure out what to do with money allocated to it. I’m sure they can figure out some ways in which to use it to better their organization and I’ll bet so could you. The point is whether they have a legitimate claim to such money.
The rest of my post addressed this.
July 1st, 2010 | 10:18 am
Jamie,
You’ve highlighted our fundamental disagreement: I believe there’s a moral component to sexual orientation – and to practicing a certain sexual lifestyle.
So do you, apparently. Otherwise, why would you bring up the ideas of “tolerance” and “acceptance” to defend it? I have to make a decision about something’s morality before I can decide whether to tolerate it or not.
For example, I believe it’s immorral to discriminate on the basis of race. Therefore I won’t tolerate it.
July 1st, 2010 | 12:24 pm
Someone wrote: “The all-comers policy specifically defines discrimination….cannot discriminate against race, religion, national origin, sex, disability, or sexual orientation. Nope, sorry morality is not listed.”
That statement is not correct. In fact, it is backwards.
By definition, the “All-Comers” policy does NOT define types of discrimination. Its essence is to the contrary: that is, to avoid any such attempt at specifying what “discrimination” means.
“All-Comers”, as Hastings explained it in litigation, means a group must accept any person for full membership, regardless of the divergence of the person’s views or lifestyle from the student group’s aims.
Thus, under “All-Comers” a motorcycle-loving group must accept those who hate motorcycles and think they are dangerous. The Campus Republicans must accept Democrats. Environmental groups must accept those who think environmental law has gone way too far. Wine lovers must accept those who advocate strict tea-totaling.
Hastings adopted “All Comers” as a litigation strategy. It had a written policy limited to banning sex, race, religious, sexual orientation etc. discrimination (Written Policy) and it de-certified CLS based on that Written Policy. During litigation, it rather cleverly “changed” its policy, claiming that it had always “interpreted” its Written Policy to be an “All Comers” policy, though this was obviously quite different from the express terms of the Written Policy.
An “All Comers” policy was obviously easier to defend. They had good lawyers who realized this.
The Supreme Court majority decided the case based on the theory (supported by the parties’ stipulations) that all was in issue was the “All-Comers” policy. Hastings, in effect, out-lawyered the CLS in this regard. Had CLS been more careful in its stipulations, the case might have been different.
July 2nd, 2010 | 2:01 am
So its OK to exclude people based on sexual orientation and religion because you think that has a religious component.
Well if this was a private Christian School or the US was a theocracy like Iran, you might have a decent argument.
You actually expect a state university to have a policy favoring and funding a Christian group based on Christian beliefs? Ever heard of “excessive entanglement”? Look it up. Separation of Church and State is alive and well, Thank God. Even Jesus defended it “Give to Caesar what is Caesar and to God what is God’s”
You’d think a Christian would have some concept of acceptance and what non-discrimination policy means.
July 2nd, 2010 | 2:07 am
A Hastings student group gets about $40 per semester depending on membership. It usually pays for pizza for a meeting or two. CLS is basically just creating imaginary conflicts and suing school around the country that have non-discrimination policies. Nice to see that CLS is trying to ensure that all people have the right to discriminate. If CLS had the right to exclude others, then the KKK would have the right to start a student group and exclude all other races. CLS’ same argument holds true – Hastings policy forces the KKK student group to let blacks become members and undermine their beliefs. Sorry CLS, the rest of us have to live in the real world….The Supreme Court has to consider the practical implications of its rulings. Guarding against CLS’ imaginary fears is not as important as real world discrimination, which is still a problem – as JDD’s bigoted posts show. I tolerate you JDD, and yes I believe you are immoral.
July 2nd, 2010 | 12:04 pm
Shauna,
“So its OK to exclude people based on sexual orientation and religion because you think that has a religious component.”
I think you’re responding to the question I posed to Amy. I wanted to challenge her statement that there is no moral component to one’s sexual orientation and actions. If there is such a component, then we have to limit the way in which the government can arbitrarily favor – or disfavor – one morality over the other.
To answer your question, it is the school doing the excluding. It’s okay to require members of an organization to actually agree with the purpose of the organization, and to expect that you won’t be disqualified for funding simply because the school, local or higher government doesn’t like that view.
People who complain about a theocracy usually mean that they worry about a government enforcing Christian ethics. The school – and by extension the government through funding – here is deciding which ethics to actively support through funding, and which to not. But it’s okay here because it’s not a Christian ethic that was upheld? It’s okay here because it’s a Christian ethic that was sliced away?
CLS is saying fund every group equally and let the students join the ones they think are worthy. The school is the one doing the excluding here.
“You actually expect a state university to have a policy favoring and funding a Christian group based on Christian beliefs?”
You’ve substituted in a word – favoring – that is nowhere in either CLS’s case or my argument. Again, the school is the one doing the dis-favoring, and it is CLS that’s justly asking for a level playing field.
July 2nd, 2010 | 12:34 pm
Uh – that would be my response to the question posed by Jaime – not Amy!
Amy, I’m glad you’ve actually touched the question of the KKK “joining” the Black Student group. Few seem to want to touch that question with a hundred foot pole, and I think that’s instructive.
Can you explain to me, however, how “The Supreme Court has to consider the practical implications of its rulings” jives with the Court’s actual imperative to impassionately simply determine laws’ compliance with the Founding Documents?
July 3rd, 2010 | 2:31 am
Really the court’s actual imperative is to enforce the founding documents without any regard to societal implications or the effects of the documents? Really? Does Brown v. Board of Education mean anything to you? Also, are you forgetting that Hastings is a state actor? Does excessive entanglement mean anything to you? Probably not, its funny to listen to lay people try and argue about a case they haven’t even read. Have you even taken a ConLaw course?
By no stretch of the imagination would any student of First Amendment rights ever seriously argue that Freedom of Speech and Assembly mean that you are owed state funds to speak. Can you cite case law for that proposition? Of course not. Its funny to watch non-legal people try and understand this case, when practically no one has even read it.
CLS always had unabridged Freedom of Speech and Assembly. CLS can do anything they want, exclude people, burn crosses, torture puppies, whatever… but they have no right to expect Hastings to pay for it if they dont’ follow a policy that 59 other student groups adhered to. CLS’ Statement of Faith was pretextual for discriminating against others as a political statement.
CLS always had its Freedom of Speech and Assembly, but there is NO constitutional right that they receive state funds to speak or assemble. The point of a student group is to encourage a sense of community within the students of the school, hence the policy that a student group should accept all-comers. Obviously, a group that excludes others does not help with that mission, and should not expect school funds specifically intended to promote “an inclusive community,” something that CLS evidently finds repulsive. But CLS is still free to discriminate, just without state funds.
July 3rd, 2010 | 2:43 am
So the belief that a groups’ members should all agree with the group’s beliefs is a Christian ethic? Unrelated.
Even if CLS’s motivation is out of morality, they are excluding/discriminating against people.
Although irrelevant to this discussion, you’re belief that homosexuality is just a behavior is not shared by the majority of the world, scientists, behavorialists, etc. Studies of brains of gays and straights have found differences in how the brains process things, including sexual desire. Even if you claim it is a mental disease, if CLS had excluded mentally ill people, then that would still violate the “all-comers” policy.
CLS can teach any ethics they want, the all-comers policy is viewpoint neutral because it says to all student groups “you must not discriminate against students in accepting members and must accept all students that want to join.”
Since when is prohibiting discrimination slicing away a Christian ethic?
July 3rd, 2010 | 3:00 am
For all non-legal people, this is what the case was really about, and what is really going on behind all this rhetoric about rights (that actually has much less to with the Constitution than it might seem):
http://writ.news.findlaw.com/hamilton/20100701.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawWrit+(FindLaw%27s+Writ+-+Legal+Commentary)
July 6th, 2010 | 1:17 pm
Yotomoto,
“The point of a student group is to encourage a sense of community within the students of the school, hence the policy that a student group should accept all-comers.”
You’re going to have a hard time convincing many people that THAT’s the central point of a student group. But it does reveal a bit more of where you’re coming from and why you hold the position that you do.
By the way, a central weakness with the prevailing argument is equating “discrimination” with holding a set of requirements for membership. You can’t just throw around the word “discrimination” and expect it to stick to everything. By that argument – as has been noted already – the moment you write down one sentence as to what defines your group, you are disqualified from funding.
You also must concede that that phrase “all-comers” is a flimsy phrase, at best. It hardly means, in this case, only that all are welcome to attend. My guess is that that is already true. As has been noted before, the “all-comers” policy is being perverted to mean that all are welcome to attend as if the group was a _completely different group – one that is re-chartered according to their liking._ Otherwise, discrimination is claimed.
“By no stretch of the imagination would any student of First Amendment rights ever seriously argue that Freedom of Speech and Assembly mean that you are owed state funds to speak.”
The word “owed” is yours, and that’s a bit of a straw man argument. The issue remains funding that is available to all student groups and was denied to one in particular.
“Its funny to watch non-legal people try and understand this case, when practically no one has even read it.”
Wild guesses about posters’ educational background and general level of intelligence aside, I wonder what it means to you that, among others, four Supreme Court Justices reached a different conclusion than you.
July 9th, 2010 | 5:02 am
Have you read the opinion, word for word? Reinforcing a student community and promiting leadership opportunities was the explicit purpose of the student group at Hastings, AND logically that is generally the purpose of student groups at any university.
Seriously, the concept of discrimination is not that complicated. When in doubt do what the courts do, look it up. According to Merriam-Webster “discrimination” is treatment taken toward or against a person of a certain group in consideration based solely on class or category. Hmmmm…if the shoe fits. There were 59 other student groups at Hastings with volumes of materials, meeting and publications that define their objectives and purpose. Notably, not one of them categorically excludes any other students from membership. Yours is the straw man argument. The phrase “all comers” is no more flimsy than the phrase “holding a set of requirements.” In fact, yours is more flimsy, since your phrase as Justice Kennedy, a Ronald Reagan appointee, pointed out in his concurrence, would allow a student group (such as the KKK) to use in excluding students based on race. How short sighted of CLS is not to appreciate what doors they would open in fighting for an exception to discriminate.
“All-comers” is a policy that is has been in practice for almost 20 years at Hastings and several other Universities. As can be seen in practice, it has not eviscerated the idealogy of any student groups; they function as they always have. Simply put, students that aren’t interested do not attend. That is why, as Ginsburg noted, the threat cited by CLS of infiltration was hypothetical, and not an actual threat.
Regarding funding, again, yours is the straw man argument. You pointed out that funding is available to all student groups? The funding is state funding, and according to the U.S. Constitution must be distributed withThe Constitution ensures Freedom of Speech and Assembly, and does not provide that a state actor must provide funds for these freedoms. out favoring any one particular religion. Hastings can condition funds according to a viewpoint neutral policy.
As far as legal education, the general lack of understanding as to what Freedom of Speech and Freedom of Assembly entails is evident from the majority of posters discussing this decision. Given your defensiveness regarding that observation, it is apparent that you fall in that category of posters (or that your JDD comes from a TTT). Although you point out that four Justices disagreed with the decision, it should also be pointed out that the decision was the result of a Supreme Court having 9 justices, the majority of which were Republican appointees. The fact that a Supreme Court having five Republican appointees that is notoriously conservative and cautious in its holding found for Hastings, shows how skewed CLS’s legal arguments truly are.
July 9th, 2010 | 2:53 pm
Yotomoto,
“Reinforcing a student community and promiting leadership opportunities was the explicit purpose of the student group at Hastings…”
Promoting leadership opportunities – that’s newly added to your previous definition. We’re getting closer to agreeing here. Leadership in and for what?
“Seriously, the concept of discrimination is not that complicated. When in doubt do what the courts do, look it up. According to Merriam-Webster “discrimination” is treatment taken toward or against a person of a certain group in consideration based solely on class or category.”
Yes, and our Country wrestles with how to define such categories while still upholding religious freedoms which are at times in conflict. Who settles what categories and classes are legitimate, and which are not? One person’s use of the term “discrimination” is different than another’s. It is indeed a complicated discussion.
“The phrase “all comers” is no more flimsy than the phrase “holding a set of requirements.” In fact, yours is more flimsy, since your phrase as Justice Kennedy, a Ronald Reagan appointee, pointed out…”
Now that’s an odd turn of phrase. For the first time, you begin to give the impression that you’re less debating another person and more debating a caricature of a viewpoint. What the heck do I care that Kennedy is a “Ronald Reagan appointee”?
““All-comers” is a policy that is has been in practice for almost 20 years at Hastings and several other Universities. As can be seen in practice, it has not eviscerated the ideology of any student groups; they function as they always have. …”
As an aside, to be precise, I’m not sure that the existence of “all comers policy” is precisely the issue here – it’s how it is now recently being re-interpreted and (mis)-used that is the problem. In a very real sense, the “all comers” policy was not the issue until it was made the issue. So saying things have been fine for the past 20 years with this policy is not really a good defense of the current development.
That being said, “things have been fine” and “it has not eviscerated the idealogy of any student groups” are rather subjective opinions. You sure? Can you submit any research or data to back up this argument?
“Regarding funding, again, yours is the straw man argument. You pointed out that funding is available to all student groups? The funding is state funding, and according to the U.S. Constitution must be distributed withThe Constitution ensures Freedom of Speech and Assembly, and does not provide that a state actor must provide funds for these freedoms. out favoring any one particular religion. Hastings can condition funds according to a viewpoint neutral policy.”
There’s that word “favoring” again. Can you explain again how CLS is asking for favoring?
“As far as legal education, the general lack of understanding as to what Freedom of Speech and Freedom of Assembly entails is evident from the majority of posters discussing this decision. Given your defensiveness regarding that observation, it is apparent that you fall in that category of posters”
Yokomoto, I’m trying to get you to figure out real quick that wild guesses, caricatures of liberal vs. conservative or whatever, and ad hominem attacks on these boards will do very little else but undermine the credibility of your own arguments.
“(or that your JDD comes from a TTT).”
You’ve lost me.
“Although you point out that four Justices disagreed with the decision, it should also be pointed out that the decision was the result of a Supreme Court having 9 justices, the majority of which were Republican appointees. The fact that a Supreme Court having five Republican appointees that is notoriously conservative and cautious in its holding found for Hastings, shows how skewed CLS’s legal arguments truly are.”
Oh come on! This is your logical train of thought? Apart from the worn-out caricature of equating a Christian viewpoint with the Republican title, and apart from ignoring the well-known political and ethical leanings of some of those appointees…you’re arguing that CLS’s position is discredited because Republican administration appointees sided against them? And you believe that’s a compelling argument?
Good afternoon.
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