By Robert Barnes
Washington Post Staff Writer
Sunday, April 18, 2010; A05
SAN FRANCISCO -- At the oldest law school in the West, law is being made this semester, not just taught.
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.
Hastings is far from the usual image of an ivy-clad law school; it is a collection of mid-size buildings on the edge of San Francisco's gritty Tenderloin district. It draws applicants interested in public service, said Leo P. Martinez, its acting chancellor and dean. About a third of its students go to work for government or nonprofit groups, he said, and more California judges are graduates of Hastings than of any other law school.
There are nearly 70 recognized student organizations, including law-oriented groups such as the Federalist Society, ethnic groups such as the Middle Eastern Law Students Association and groups such as ballroom-dancing enthusiasts and Hastings Legal Vines, a wine club.
Martinez said he has been asked if the school's policy means that a Jewish organization would have to allow a Nazi sympathizer to join, and his answer is yes. "That's a necessary consequence of being nondiscriminatory," he said. "We accept students of all stripes. We can't do that and then tell some students, 'Listen, there are going to be some aspects of the educational experience at this school that are foreclosed to you.' "
Official recognition brings the right to use the Hastings name and logo, access to an e-mail address with a link to the law school's network, office space and meeting rooms, and small grants from student-activity fees and university funds.
A Christian group was part of the landscape for years. But when it decided to affiliate with the national CLS, it was told the group's ban of gays and nonbelievers in leadership positions violated the college's policy and its insistence that all Hastings students be allowed to join any club.
The CLS sued. A federal judge sided with the school, saying its blanket policy did not single out the religious group because of its views. The U.S. Court of Appeals for the 9th Circuit affirmed.
The CLS's brief says Hastings' "all-comers" policy is a litigation strategy, at odds with how the college has actually treated other groups. It is not viewpoint-neutral, the brief says, because the policy "targets solely those groups whose beliefs are based on 'religion' or that disapprove of a particular kind of sexual behavior."
But it said all groups would be threatened if required "to admit as leaders and voting members those who disagree with their core beliefs and viewpoints."
Hastings counters that the CLS stipulated during the suit that the anti-discrimination policy applied equally to all groups, and said in its brief that the religious organization has created "straw men" to try to convince the court that there are greater constitutional issues to be decided.
Garre told the court in his brief that the CLS wants it to find that religious and other groups with a point of view "not only may insist that the public subsidize their practices, they may insist on using the state's name while doing so. Nothing in the First Amendment compels that remarkable result."