Justices Spar Over Case of Religious Campus Group

WASHINGTON (April 19) -- A California law school's mandate that its campus groups must admit anyone -- including atheists -- into the leadership of a Christian society provoked a lively argument in the Supreme Court today as the justices weighed whether the policy was constitutional or just plain "weird."

The hour of spirited argument pointed to a divide within the court on the case of Christian Legal Society v. Martinez, which stems from a policy at Hastings College of the Law -- part of the University of California -- requiring that official student groups not discriminate in accepting members.

In fighting the policy, the Christian Legal Society says the First Amendment protects its right to require that its officers be Christians who believe in core church beliefs, such as rejecting premarital sex. For its part, Hastings argues that groups that exclude certain students should not receive public and student activity funding.

The case has far-reaching implications for a number of institutions, including religious groups that receive government funding, such as those providing social services, and public schools that control who can join after-school activities.

Justice Antonin Scalia said it was "weird" to think the Hastings policy would require a Republican club or a Democratic club to admit someone of the other party into its leadership.

"To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy," he said, to laughter in the courtroom.

But Justice Anthony M. Kennedy pointed out that no one had actually ever tried to infiltrate a group that way. And Justice Ruth Bader Ginsburg noted, "It may be an ill-advised policy, but the school says: It's our policy, it's working fine, and all the -- the hypotheticals about sabotage, takeover, they haven't happened."

Justice John Paul Stevens, the soon-to-retire leader of the court's left wing, explored the difference between discriminating against someone based on his status -- such as race or gender -- and discriminating based on a person's beliefs, such as religious convictions.

"What if the belief is that African Americans are inferior?" Stevens asked.

Michael W. McConnell, attorney for the CLS and head of the Stanford Constitutional Law Center, said CLS could choose its leaders based on religion without discriminating based on status, such as race.

McConnell called the Hastings policy a "frontal assault" on the right to free association -- forming groups based on common beliefs. The policy is "blatantly unconstitutional" because it's much broader than needed, and the courts have held that restrictions on student speech should be no more extensive than necessary, McConnell said.

Hastings' lawyer, Gregory G. Garre, argued that the CLS and other groups that admit only certain kinds of members -- such as single-gender organizations -- can still form. They just can't be official student organizations, which receive university funding and access to school facilities, bulletin boards and e-mail.

McConnell said that now that the CLS is not an official school group, it gets the run-around from school officials when it tries to use campus facilities. However, Justice Sonia Sotomayor had little sympathy. "But your group is not being excluded or ostracized completely from the school," she said. "Presumably you can meet in the cafeteria, you can meet in open spaces in the school."

There is also dispute over over how long Hastings has had its "all-comers" policy. College Dean Leo Martinez said after the arguments that the rule has been around for 20 years. But McConnell said there's no evidence the policy existed before 2005, when the court case brought attention to the issue.

The CLS said it was singled out for enforcement of the rule, even as a student group called La Raza, for instance, had bylaws that required Hispanic descent for membership. Scalia chided McConnell, however, for not offering further evidence of unequal treatment.

Justice Stephen G. Breyer said he was struggling with the issue without enough information. The Hastings policy "does seem to discriminate against organizations in respect to which intellectual parity would be important," he said. But he added that there wasn't enough information in the record about the impact on other groups. "I don't know how the chess club feels about players of tiddlywinks," he said.

The Supreme Court is expected to decide the case this summer.