What Constitutional Law Is All About

Today’s big Supreme Court decision, Christian Legal Society Chapter of the University of California, Hastings College of the Law, AKA Hastings Christian Fellowship v. Martinez et. al., raises a nice, juicy Constitutional question, just what the Supreme Court is for.

The facts are simple if novel — a group of students at a public university wished to form a group and exclude homosexuals from it. They claim they have a First and Fourteenth Amendment right to freedom of association and that includes the right to exclude people from their group they do not want to associate with. (Association with others itself conveys a message and is therefore a form of speech; this contention is not disputed.)

On the other hand, the school administration says that all student groups are chartered by the school, and therefore part of the school. The administrators stated that as a public institution, the school has an obligation under the Equal Protections Clause of the Fourteenth Amendment to make sure that everyone has access to all school facilities. Therefore, the school’s rule for student clubs is that all student clubs must accept into their ranks anyone who wishes to join.

So that’s the fight — does the “take-all-comers” policy, by compelling the Hastings Christian Fellowship to accept within its ranks “unrepentant homosexuals” despite its adoption of a policy excluding such people as contrary to the reason for the group’s existence, thus violate the First Amendment?  The breakdown of the case was 5-4 along the traditional ideological lines, with swing-vote Kennedy siding with the majority. Justice Ginsburg wrote the majority opinion, Justice Alito wrote the dissent.  As you might imagine, the Ginsburg opinion says “no First Amendment violation,” and the Alito dissent says “yes, there is a First Amendment violation.”

My man Timothy Kincaid sees the legal tension perfectly. On the one hand, it’s obnoxious that gay students would have to pay money that would be used to support a group that excludes them and calls them immoral. On the other hand, a rule like this creates a significant risk which the Court wrongfully downplays:

Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.
While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.

Kincaid is right to take that risk seriously. Student groups are particularly vulnerable to takeovers of this nature, precisely because the marginal cost of supporting a takeover is so low. All it would really take is two or three motivated people to organize a dozens-strong walk-in at the group’s annual organizational meeting and suddenly you’ve stacked the meeting room of the College Republicans with a bunch of granola-eating Greens and Progressives, and you get crazy things going on like the College Republicans endorsing the repatriation of the Mexican Cession to the indigenous peoples.

Complicating the issue is the fact that homosexuality, the status upon which the student group sought to exclude members, is not a traditionally protected class under the Fourteenth Amendment, although it is under several Federal educational statutes and under the California State Constitution. If applicable, the First Amendment associative right would trump all of that.

So the question is, does the associative right come in to play at all here?  The majority says no, because the “take-all-comers” policy applies equally to every group on campus, the “public forum” in question here is significantly limited (to students at Hastings Law School), and the administrators are entitled to a degree of deference in balancing the competing Constitutional concerns of non-discrimination and permitting free expression because the school is ultimately paying for it all.

My take on it is, there was never anything stopping the Christian students of Hastings Law School from forming their own informal club.  If they want to have a private organization and exclude gays, they can.  If they want to participate in a public institution, they need to play by the public institution’s rules, which includes non-discrimination.  Not that advances in technology change the Constitutional principles at stake here, but they do highlight the concept:  in this day and age of Facebook, e-mail, cell phones, text messages, Twitter, and bluetoothing, there is nothing at all to stop these students from forming an extra-curricular club and inviting or excluding anyone they choose.

Nor is there anything stopping a group, assuming it abides by campus rules equally applicable to every group, from advocating the point of view that homosexual conduct is immoral or undesirable.  That is a moral, legal, and social issue of contemporary interest (and a viewpoint on that issue with which I happen to disagree) and if that’s what the students in the group think, they have a right to say it.  If it happens that they have members within their own group who disagree with that position, well, that’s something they have to work out amongst themselves and it doesn’t stop any individuals from dissenting either in public or in private.

But it’s a tough question.  There is no good solution to this case.  It has to be decided “yea” or “nay,” and either way implicates and, at least potentially, diminishes some rights while enlarging others.  There is no way around it, the circle can’t be squared; either association bows to equal protection or equal protection bows to association.  That’s what is so vexing, and intellectually challenging, about constitutional law, and that’s why I enjoy it so much.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. A very well reasoned and unbiased review TL. I remember getting a lot of flack in college for not signing a petition to force Religious student organizations to accept GLBT members. I hadn't made up my mind on the issue yet and thus wasn't comfortable assigning my name to one side of the issue.Of course there's the third option to abolish all but the most accademic of organizations and make everyone fend for themselves….

  2. It is a fascinating issue, fun stuff for those of use who revel in constitutional law. I haven't read the entire opinion yet, but I do think my gut reaction is like yours that the group should just be a non-school-sanctioned club. That's how my high school handled it: any PPR (political, philosophical, or religious) group wasn't allowed to be a school-sponsored club. We could meet on school property after hours, but couldn't participate in school activities, like Homecoming. (The year that Fellowship of Christian Athletes was going to be allowed to paint a window for the Homecoming week contest, my club, Students for Choice, raised all kinds of holy hell. If they get to participate, so do we, we screamed. The administration immediately told FCA they couldn't participate, largely out of fear that if they had to let us participate, we would paint aborted fetuses on our window or something.)

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