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April 19, 2010

Religion and State Back at the Supreme Court
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This morning, the justices heard argument in Christian Legal Society v. Martinez, which asks whether a public law school can deny official recognition to a student group that limits officers and voting members to those who share its core religious commitments. Official recognition comes with some money, access to school facilities, permission to use the school's name and logo, and other benefits, but to get it the student group would have to follow the school's non-discrimination policy.

Background on the suit is here, but I'll summarize.

The lawsuit started in 2004 after the school's Christian student group joined the nationwide Christian Legal Society and adopted new by-laws requiring officers and voting members to sign a "statement of faith" that excludes gays, atheists, and non-Christians. The group then asked the school for $250 in travel funds (generally provided to other officially recognized student groups), but was denied because the group wasn't abiding by the school's nondiscrimination policy.

The group argued that the school's nondiscrimination policy violates their rights to religious freedom, speech, and association. The law school denied the group's premise. It argued that the school's non-discrimination policy isn't directed at their Christian beliefs, but is a "rule of general applicability" aimed at preventing discrimination on campus. It argued that the group is asserting a constitutional right to a public subsidy.

Unfortunately, the parties have drastically different views of what actually went on because the group stipulated in lower courts that the law school applied the non-discrimination policy in a viewpoint neutral manner. The law school wants the group to stick to its stipulation, but the group tried to revive the factual dispute at the Supreme Court.

Some of the justices did not take that well:

“It is frustrating not to know what is before us,” Kennedy said in the opening minutes. And Justice Stephen G. Breyer, who had said with the same frustration that the case had become one of “great unclarity,” asked plaintively in the closing minutes: “What do I do with this case?” In between, the Court went on a spirited, but mostly unrequited, search for the real-world facts about how the Hastings College of Law in San Francisco decides when to allow a student group to gain official campus recognition, and thus access to some money and to the school facilities.

If the Supreme Court tosses back this case without resolving some of these constitutional issues, it will be one of the most costly refusals to give $250 in travel funds EVAR.

What do you think?

And why?

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posted by Gabriel Malor at 02:37 PM

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