Narrow loss

WASHINGTON-Two hours before Supreme Court nominee Elena Kagan's hearings began, the man she may replace, Justice John Paul Stevens, issued his final rulings.

The Supreme Court on Monday ruled against the Christian Legal Society (CLS), which had argued that it had the 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-comer" 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-comer" policy is "reasonable" and constitutional. Justices Anthony Kennedy, Sonia Sotomayor, Stephen Breyer, and Stevens joined Ginsburg (whose husband, Martin David Ginsburg, died Sunday) in supporting Hastings.

Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito disagreed. "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. The majority also acknowledged that, based on previous rulings, a public university in general can still subsidize a student group that organizes around certain common beliefs.

"We still have very strong arguments," said Greg Baylor, one of the lawyers representing CLS in the case. "There is a path to victory below." By "below," Baylor means that they may have success again in the lower courts.

Still, the ruling surprised CLS. In the past, when the Supreme Court has taken up a case like this from the 9th U.S. Circuit Court of Appeals, it has overturned the lower court's ruling. Here, it affirmed the 9th Circuit. In another case, Rosenberger v. University of Virginia, the court ruled in favor of a student group publishing a religious newspaper when the university denied it funding. The same lawyer who successfully argued that 1995 case, Michael McConnell, argued the case on CLS's behalf.

In the run-up to the oral arguments, CLS found support outside the evangelical world: A libertarian gay group, a Muslim group, and 14 states filed briefs in support of the Christian group. And The Washington Post penned an editorial excoriating Hastings. CLS speculated that under Hastings' policy, atheists could take over a Christian group, or white supremacists could take over an African-American student group.

"This supposition strikes us as more hypothetical than real," wrote Ginsburg. "Students tend to self-sort and presumably will not endeavor en masse to join-let alone seek leadership positions in-groups pursuing missions wholly at odds with their personal beliefs."

"The opinion solves very little," said Jordan Lorence, another of the lawyers working with CLS in the case.