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Supreme Court to consider case against California law school

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By Robert Barnes
Washington Post Staff Writer
Sunday, April 18, 2010

SAN FRANCISCO -- At the oldest law school in the West, law is being made this semester, not just taught.

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In a case that carries great implications for how public universities and schools must accommodate religious groups, the University of California's Hastings College of the Law is defending its anti-discrimination policy against charges that it denies religious freedom.

The college, which requires officially recognized student groups to admit any Hastings student who wants to join, may be well-meaning, says the student outpost of the Christian Legal Society. But the group contends that requiring it to allow gay students and nonbelievers into its leadership would be a renunciation of its core beliefs, and that the policy violates the Constitution's guarantee of free speech, association with like-minded individuals and exercise of religion.

"Hastings' policy is a threat to every group that seeks to form and define its own voice," the group told the court in a brief. The case, Christian Legal Society v. Martinez, will be argued in the Supreme Court Monday morning.

Hastings counters that the CLS, a national organization that seeks to "proclaim, love and serve Jesus Christ through the study and practice of law," is demanding special treatment. It wants the college's official stamp of approval and the access to benefits and student activity fees that come with it, but it will not commit to following the nondiscrimination policy that every other student group follows.

The CLS is not being forced to do anything, Hastings contends. "A group may abide by the school's viewpoint-neutral open-membership policy and obtain the modest funding and benefits that go along with school recognition, or forgo recognition and do as it wishes," it said in its brief.

The case poses a quandary for a court that has recognized both the ability of public universities and schools to control the use of their facilities and funds and the right of religious groups to select members based on their beliefs. It comes as religious groups have become more active and litigious in demanding a place in the public forum of free speech.

Christian groups have brought suits against similar policies across the country, from the University of Florida to Boise State University. "In every case . . . either the courts have ruled for the religious student group or the university has settled or mooted the case by revoking its unconstitutional policy," the CLS brief asserts.

The controversy also raises questions about who needs protection. CLS lawyer Michael W. McConnell, a former federal judge and director of the Stanford Constitutional Law Center, likens the underdog status of Christian groups at liberal law schools such as Hastings to the way gay rights groups might have felt on a Southern campus years ago.

"One of the things I find kind of pleasantly ironic about the briefing in this case is we find ourselves relying on about a dozen cases that involve gay rights groups in universities," said McConnell, who was appointed as an appellate judge by President George W. Bush. The other side, he said, relies on decisions and legislative acts that helped Bible clubs.

Hastings has also brought in high-powered help. It is represented by Gregory G. Garre, a solicitor general under Bush who is now in private practice. The National Center for Lesbian Rights, which represented a campus gay rights group called Hastings Outlaw that is a party to the case, has made way at the high court for Washington lawyer Paul M. Smith. He successfully argued Lawrence v. Texas, in which the court struck down a state law making homosexual conduct illegal.

They are joined by 37 organizations and states who have filed amicus briefs. Notably missing is the Obama administration, which chose not to get involved.


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