Viewpoint discrimination

The Supreme Court, in its final decision before Justice John Paul Stevens' retirement last month, ruled against the Christian Legal Society (CLS), which argued its right as an official student group to require that voting members and leaders agree to a statement of faith.

University of California's Hastings Law School had denied giving student group status to CLS based on the school's "all-comers" policy, under which groups are required to accept anyone into membership, regardless of "status or beliefs."

Justice Ruth Bader Ginsburg wrote in the majority opinion that the all-comers policy is "reasonable" and constitutional. Justices Anthony Kennedy, Sonia Sotomayor, Stephen Breyer, and Stevens joined Ginsburg in supporting Hastings.

The ruling surprised CLS and demonstrated again the unpredictability of the court-with decisions virtually dependent on Kennedy's swing vote. A similar case went the other way in 1995. With Kennedy writing the majority opinion in Rosenberger v. University of Virginia, the court ruled in favor of a student group publishing a religious newspaper after the university denied it funding. The same lawyer who successfully argued that case, Michael McConnell, argued the CLS case. Kennedy is likely to continue to wield enormous influence-despite the presence of two Obama justices soon-since he is one of the most senior members, and will have the authority to write opinions whenever he is at odds with the chief justice.

The conservative bloc-Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito-landed opposite on the CLS decision. "The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,'" Alito wrote in the dissenting opinion. "Today's decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning." The minority argued that Hastings' all-comers policy is simply "a pretext to justify viewpoint discrimination."

But the ruling was narrow-the court did not answer the question of whether Hastings had enforced its all-comers policy consistently-leaving the door open for a possible return to lower courts-and the minority opinion points out that Hastings didn't officially establish the all-comers policy until after it had denied student group status to CLS. The group also found support outside the evangelical world: A libertarian gay group, a Muslim group, and 14 states filed briefs in support of CLS, and The Washington Post penned an editorial excoriating Hastings.