The transcript of yesterday’s oral argument in CLS v. Martinez is online. I read it last night (so you don’t have to!) with the intention of immediately posting observations and important exchanges, but, you know, this one is a bit of a head-scratcher. I can’t remember ever reading a Supreme Court hearing that was so light on discussion of the Court’s own precedent and so heavy on, I guess, practical concerns. “It is so weird…” Justice Scalia remarked. “Won’t this all just work out?” Kennedy wondered.
Between trying to decide exactly which policy to put under the microscope (“It’s frustrating for us not to know what kind of case we have before us”, Justice Kennedy said), and being unclear about why the school would need such a policy in the first place, the substantial questions regarding discrimination, free exercise and association, government subsidy (which was hardly mentioned) and the establishment clause fought to be heard through the maze. But they were there. Read below for key quotes from yesterday (my emphasis in bold)
On the distinction – essential to CLS’ case – between discrimination based on belief, and discrimination based on status:
JUSTICE SOTOMAYOR: So what is wrong with the purpose of a school to say, we don’t wish any group that doesn’t — that discriminates?
MR. McCONNELL [representing CLS]: The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis Hastings is able to enforce. But they may not tell a group –
JUSTICE STEVENS: What if the beliefs –
MR. McCONNELL: — that we don’t have to let you in if we don’t agree with you.
JUSTICE STEVENS: What if the belief is that African Americans are inferior?
MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status. So that if there were racist organizations –
JUSTICE SCALIA: You can have a student organization, I suppose, of that type. It wouldn’t include many people. But if there were such an organization, I assume that they would have that — that belief required, right?
MR. McCONNELL: That’s right, but they could not go the next step and exclude someone on the basis of status.
On church-state separation, and whether religion impacts this case, in either direction:
JUSTICE KENNEDY: …Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don’t we also have a tradition of separation? That’s the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs. And it — it — it seems to me we have to consider that when we are considering your argument. Now you can cite Rosenberger, but — but I think this is different from that.
MR. McCONNELL: The separation is between church and State, but this Court has held over and over again that speech forums — that people participating in a speech forum are not the State. The State is Hastings. We are perfectly private. There is nothing wrong with a religious organization, even on public –
JUSTICE SOTOMAYOR: You are not –
JUSTICE SCALIA: Anyway, as I understand your argument on the all-comers policy, it is not an argument that — that is based upon the religious nature of CLS. You would make the same argument of unconstitutionality with respect to the student Republican Club, wouldn’t you?
MR. McCONNELL: We would. Now, we do -there is in addition of free exercise argument, but I don’t — but in this case what the free exercise clause protects is exactly what the associational freedom test would protect for everyone.
JUSTICE KENNEDY: I had thought that an important part of the case, of your case, is that belief is inherent to the idea of religious expression and must be protected. But if the protection causes problems within the school for other policies, then doesn’t the separation policy come into play? That’s — that’s what I’m asking.
MR. McCONNELL: Again, separation does not apply to private parties when they are operating, even on government property.
Justice Kennedy tries again to engage on the question of religion and the possibility that separation of church and state justifies the school’s policy:
JUSTICE KENNEDY: …Cantwell said that belief is central to — to religions and that people would disagree. But that’s precisely why Hastings might argue to us that — that this is inconsistent with their idea of what this forum is. And if — will you just address that, please?
MR. McCONNELL: I would address it. The forum — the purposes of the forum are undisputed. They are to provide a diversity of expression among student groups. Their policy disserves the purpose of the forum and therefore cannot be regarded as reasonable in light of that.
On the reasoning behind the Hastings Law School policy:
JUSTICE SCALIA: …it is so weird to require the — the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.(Laughter.)
…
JUSTICE KENNEDY: …why doesn’t this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them. What — doesn’t this all just workout?
…
Doesn’t it work out that the Democrats, they don’t want to go to the Republican club and run for officership anyway. So why — what -what interest does this — does the school have in this policing mechanism that it’s imposing?
MR. GARRE [representing Hastings Law School]: …if you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line. And I think a school can reasonably say: We don’t want to get into this business at all; we want to allow all comers…
…
The reason why the school has a policy that all groups that it subsidizes must admit all-comers is that, number one, it ensures that all students enjoy equal access to all school subsidized and school recognized activities. Number two, it avoids the line drawing problems that we have discussed early this morning I think are necessarily arise and also create strife in small educational communities.
On groups (like perhaps religious organizations) for which exclusivity and unity of belief may be central to their identity:
JUSTICE BREYER: What we have is a rule, a stipulation. And as I read it, to try to make sense out of it, it does seem to discriminate against organizations in respect to which intellectual purity would be important. You are going to have a harder time. The ones that don’t care that much will have an easier time.
Now, in trying to judge the constitutionality of that, I first have no idea which these organizations are. You’ve got one of them, but there may be a lot of others. I don’t know if the Democratic club is or is not. I don’t know how big the tent they want. I don’t know whether the Turkish Society even exists. I don’t know how the chess club feels about players of tiddlywinks.
…
JUSTICE ALITO: As I understood the position — your latest position in your brief, you really don’t say you have an all-comers policy. There are certain criteria that can be applied, like interest, knowledge; is that correct?
MR. GARRE: Competitive-based, merit-based requirements are not excluded. It — it — they are not –
JUSTICE ALITO: Could a — well, could a group, consistent with your revised all-comers policy, require that members who want — anyone who wants to become a member show a particular level of knowledge about the subject of the group?
MR. GARRE: Yes.
JUSTICE ALITO: So if the CLS required anybody who wanted to become a member to pass a test on the Bible, that would be okay?
MR. GARRE: If it were truly an objective knowledge test, it would be okay. It would be no different than the law argues. These are merits-based determinations. There is a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit. That — that, I think, is a longstanding understanding of discrimination.
CHIEF JUSTICE ROBERTS: Well, that -that — that’s pretty tough. That has no connection to merit. I assume there are groups that think subscribing to their beliefs is evidence of merit, particularly religious groups. So, how can you have a — a test that allows distinctions based on merit but not — not beliefs?
MR. GARRE: I think it goes to the nature of whether it’s discrimination under the school’s policy, and I think status or belief. People understand, that’s why we are talking about things like race or gender or sexual orientation, disability, military status, any number of these things.
On the relationship between the State and the groups it sponsors in a University setting, given California’s non-discrimination laws:
JUSTICE ALITO: … your position is that if — if a religious group complies with your policies and then it conducts religious services, those religious services are conducted by Hastings?
MR. GARRE: Our position is that the registered student organization’s program is a program of the university; it is subsidized by the university‘ it is recognized by the university and that all students should be able to enjoy access to that program.
CHIEF JUSTICE ROBERTS: In your response to Justice Ginsburg concerning California law, is it your position that California law requires religious groups to admit people who do not believe in their religious beliefs and in fact to conduct services of that group?
MR. GARRE: Your Honor, our position is that the provision that we’ve cited to…does not carve out an exemption in this program for religious student organization. On its face –
CHIEF JUSTICE ROBERTS: So the answer to my question is “yes.”
MR. GARRE: Yes. On its face it excludes – it has an exemption for religious schools; it does not include an exemption for religious organizations within the context of this program. And we think that the program is reasonable.
A decision should come some time this summer.
