Academic

What Oral Argument in CLS v. Martinez May Suggest

By Calvin Massey

   The first concern of  the justices was getting a grip on the facts.  The problem results from a stipulation made in the trial court in the context of motions for summary judgment.  CLS and Hastings stipulated that the Hastings policy for recognition of student groups required that all Hastings students be permitted to join a group, vote, and serve as a group officer (the so-called "all-comers" policy).  The controversy over the facts arose because the CLS briefs in the USSC contend that Hastings has not in fact applied that policy, but has tolerated some groups closing their doors to students who do not share the group's values. By contrast, Hastings contended in its briefs that the stipulation means that there can be no inquiry into whether Hastings has walked its talk.  Wrangling over that issue occupied a large portion of Michael McConnell's argument on behalf of CLS.  While it's always dicey to read into questions a justice's voting inclination, I would hazard the guess that Justice Breyer, at least, might be pondering a dismissal on the grounds that cert was improvidently granted.   But questions also suggested that the factual quagmire might be resolved as Justice Scalia put it: "[T]hey  stipulated that the [all-comers] policy exists.  They didn't stipulate that it is ... being faithfully applied by Hastings."  If that is the case, the decision may hinge on record evidence concerning how Hastings has applied its all-comers policy.  Because CLS has made an as-applied challenge, and there appears to be some evidence that Hastings tolerated what Justice Sotomayor called "selective application" of its all-comers policy, it may be that the case will be decided on such narrow grounds. 

     Justice Stevens pressed the parties to say whether resolution of the case required the Court to decide the constitutionality of the all-comers policy.  Gregory Garre, for Hastings, said the Court must do so.  Michael McConnell, for CLS, said that the Court need not decide the facial validity of the policy, but must do so as it is applied to CLS. 

    The tenor of the justices' questions and comments suggest a great deal of skepticism toward the Hastings position on the part of the Chief Justice and Justices Scalia and Alito.  Justice Ginsburg appeared amenable to the Hastings position.  Justice Kennedy's questions and comments revealed little of his views on the merits.  Justice Sotomayor asked tough questions of each party.  As usual, Justice Thomas did not speak. 

    Assuming that the stipulation is treated as Justice Scalia characterized it, the case comes down to several issues.  First, if Hastings tolerates de facto selective application of the all-comers policy, its application to CLS is not viewpoint neutral.   Second, even if Hastings does consistently apply the all-comers policy, its application to a religious group may not be viewpoint-neutral.  Michael McConnell stressed this point by saying that Hastings could enforce non-discrimination on the basis of status but not on the basis of belief.   Third, if Hastings is consistent in applying the all-comers policy and the policy is viewpoint neutral, it still may not be reasonable in light of the purpose for which Hastings has created its limited designated public forum: To create a diversity of viewpoints among student organizations.  The CLS argument here is that Hastings has not created a forum to promote diversity within each group, but to promote diversity between and among groups.  Application of the all-comers rule to each student group creates the possibility that the views of each group will be so muddled that there is a lack of the desired diversity.  As Michael McConnell put in in his rebuttal, the all-comers policy is "so absurdly overbroad as to be unconstitutional"  if it is merely an implementation of Hastings's anti-discrimination policy and is simply absurd and thus unreasonable as a means to achieve a diversity of student group viewpoints.  

The transcript of the oral argument is here.

Full post as published by The Faculty Lounge on April 19, 2010 (boomark / email).