AI Disappointed that Supreme Court Decision Fails to Determine Scope Law Student's 1st Amendment Freedoms in CLS v. Martinez (Ju

The United States Supreme Court announced a narrow ruling today holding that public universities may override a religious student group’s right to determine its leadership only if it denies that right to all student groups in the name of “diversity.” The Court remanded to the courts below the remaining factual questions of whether the government‘s so-called ‘all-comers policy’ lately imposed by the University of California’s Hastings College of Law to exclude recognition of a Christian law student organization at the school is unconstitutional, as applied. The Court held that whether excluding the Christian Legal Society (CLS) based upon its Statement of Christian Faith constitutes a discriminatory and unconstitutional deprivation of law students rights of free expression, religious free exercise and association now turns on whether the school’s ‘all comers’ policy is, in fact, being equally applied to all student groups and not being used as a subterfuge to either discriminate against a particular group of law students based upon their viewpoint, or “infiltrate the group or challenge its leadership in order to stifle its views.” (Kennedy, J. concurring).

WASHINGTON, DC (June 28, 2010) — ADVOCATES I NTERNATIONAL (AI), the worldwide public interest advocacy organization of more than 30,000 Christian lawyers, jurists, law professors and law students in 130 countries, including this country, is disappointed by the United States Supreme Court’s decision today deferring for now any practical determination of the scope of law students constitutionally protected rights of free expression, religious free exercise and association on the public law school campus. Samuel B. Casey, AI’s General Counsel, said: “While better than the judgment below, the Court’s decision this morning is neither a complete victory nor a true defeat for viewpoint diversity on campus. It is simply a decision to go back to trial to determine what the true facts regarding the University’s application of its so-called “all comers” policy really are. Most unfortunately, the Court’s decision today does not bring to an end almost two decades of unconstitutional discrimination by administrators on many public law school campuses against CLS and other religious student groups simply because of their Christian faith when, as occurred in this case, no such viewpoint discrimination is being experienced by any other student groups.”

In support of Christian Legal Society’s request to be recognized without discrimination as a law student organization by the University of California’s Hastings College of Law, Advocates International (AI) also filed an amicus curiae (‘friend of the court’) brief with the U.S. Supreme Court. AI asked the Court to defend the First Amendment rights of expression, religion and association by overturning the Ninth Circuit Court of Appeals' unpublished decision in CHRISTIAN LEGAL SOCIETY V . KANE , which allowed University of California Hastings College of the Law to forbid its chapter of the Christian Legal Society to organize around shared religious and cultural beliefs. AI’s brief, which was one of 22 amicus briefs filed in support of reversing the Ninth Circuit’s decision, uniquely advised the Court that international law and applicable foreign law all weigh in favor of reversing the judgment below.

AI’s President Sam Ericsson and AI’s General Counsel, Sam Casey, who between them (since 1981 serving in their former capacities as CLS’ Executive Directors) have been involved in almost all of the cases upon which Christian Legal Society relied in asserting their claims, said “if student organizations cannot require that their leaders and voting members actually share the group's viewpoints, freedom of association on college campuses will be stripped of all meaning. If we are to have meaningful diversity and freedom of association on college campuses, individual students must have the right to form groups around shared beliefs—and the state must not be able to dictate what those groups' beliefs should be to obtain its preferential treatment. We are sorry that the Court in their decision today disagreed that the Constitution necessarily protects such a proposition, but simply leaves the parties to a very expensive case-by-case adjudication, as was decided today.”

The case concerns UC Hastings College of the Law's refusal to recognize the Christian Legal Society (CLS) as a registered student group. Hastings based its refusal on the fact that even though all students may attend and participate in CLS meetings and activities, voting members and group leaders must sign a "Statement of Faith" that expresses belief in CLS' particular religious worldview. At issue is a provision stating that "[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership." The statement clarifies that "[a] person's mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership." Hastings argued that this provision violates the university's ban on "sexual orientation" discrimination, despite the fact that the provision conditions membership on changeable conduct and belief, not immutable status. Hastings' restriction on freedom of association was eventually found constitutional by the Ninth Circuit Court of Appeals on the ground that the policy was viewpoint neutral and applied equally to all student groups, even though in practice it prevented only one group, CLS, from existing with equal (or any) recognition on campus.

AI’s Sam Ericsson observed that the “Ninth Circuit's now-remanded decision deeply alarmed all who care about the rights of those holding minority viewpoints on America's campuses, as it would have made nearly every campus group vulnerable to takeover and dissolution by other groups who oppose their viewpoints. Thankfully the Supreme Court’s decision today may be read to protect student groups who are so targeted by the language or effect of such a governmental ‘non-discrimination’ policy in any particular case.”

AI wrote its amicus brief to inform the Court that this case presents an issue of common concern to people all over the world who, like the Christian law students in this case, face growing state denials or impermissible conditions perniciously designed to muzzle the exercise of their freedoms of speech, association and religion in cases analogous to the instant case where private religious fellowships who otherwise pose no threat to public health or safety are discriminatorily denied registration or recognition because of their disfavored religious beliefs, ideals or commitments.

The universally acknowledged freedoms of speech, association and religion set forth in the UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR), the INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS (ICCPR) and the EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (ECHR), as adjudicated in analogous cases by the European Court of Human Rights, confirm the jurisprudential wisdom of the applicable First Amendment cases upon which the Christian Legal Society relies in its opening and reply briefs in asking the United States Supreme Court to reverse the judgment below. AI’s brief was one of 22 friends of the court briefs filed in support of CLS , representing a diverse group of more than 100 organizations, including the Attorneys Generals of 14 states, and tens of millions of Americans, as well as the global legal community represented by AI’s brief. Taken together, these “friends of the court” represent a broad political and social cross-section spectrum composed all ages and faith traditions, including the Roman Catholic Church, the Jewish, Sikh, Hispanic and Islamic communities, various colleges and universities, most campus ministries in America and even Gays and Lesbians for Liberty. This case continues an almost thirty year effort by CLS’ Center for Law & Religious Freedom to protect the freedoms of expression, religion and association from usurpation by various state actors using all manner of excuses from “separation of church and state” to their current assertion of so-called “non-discrimination” provisions to, in fact, discriminate against religious people and their ideals. AI asserted in its brief, “the decision in this case will have not just national implications, it will likely influence judicial decision-making around the world.” Unfortunately, in light of the Court’s narrow decision today, it appears we must endure further litigation in this and other cases before any determinative constitutional understanding of what government limitations may be constitutionally placed upon students’ rights of free expression, religious free exercise and freedom of association.

Click here for a copy of the United States Supreme Court decision, including the concurring opinions by Justices Stevens and Kennedy, and the 37-page dissenting opinion by Justice Alito, joined by Chief Justice Robert and Justices Alito and Thomas. For the briefs filed by the parties and the friends of the court, click here. For a history of public law school’s discriminatory exclusionary practices against CLS since 1993 click here.

Advocates International is an international organization of attorneys in over 150 nations who seek to do justice with compassion, including through its Religious Freedom Task Force dedicated to protecting the rights to free expression, religious belief and free exercise and association throughout the world for all people.

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