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Wednesday, August 03, 2011

The "other shoe," after CLS v. Martinez?

The San Francisco Chronicle reports that a "federal appeals court on Tuesday upheld a state university's refusal to provide funding and other campus benefits to student groups that exclude members of other religions, rejecting arguments that the policy stifles freedom of speech."  The opinion is here.

In Martinez (here), the majority's working assumption -- one that, on my reading, was crucial to the outcome -- was that the policy in question was a generally applicable "all comers" policy, according to which (simplifying a little bit) all student groups, in order to be officially recognized, had to allow all students to join.  This policy was, the Justices in the majority thought, "reasonable" and "viewpoint-neutral." 

In this most recent decision, though, the policy seems to allow some groups, but not others, to exclude students based on the dissonance between those students' views and the mission-and-message of those groups.  So . . . what's next?  My friend and fellow Mirror of Justice blogger Steve Shiffrin has some thoughts here.  A taste: 

To be sure, it is ordinarily problematic for an organization to discriminate on the basis of religion. If the Sierra Club were to exclude Catholics or Jews or Muslims, it would be an outrage. But there is nothing outrageous about a religious organization confining its membership to those who agree with its ideology any more than it is problematic for the Young Democrats to do so.

In response to this, the Ninth Circuit argues that the liberty of the religious organization is not denied. It may still participate on campus without official recognition. But the problem is the inequality in application of the policy. In response to this point, the Circuit says that this inequality was not part of the purpose of the policy. Perhaps so, but that is beside the point. The effect of applying the policy in this way should have been regarded as constitutionally unreasonable. . . .

Posted by Rick Garnett on August 3, 2011 at 04:03 PM in Rick Garnett | Permalink

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Comments

Patrick
The remand is not to consider the inequality that some organizations can hire to mission and others cannot. The remand is to determine whether the policy was selectively applied, eg., some organizations can discriminate on the basis of religion and others may not. The case wrongly in my view holds that the policy against religious discrimination can be applied to religious organizations and that was the point of my post.Thanks to Rick for linking to my post.
Steve

Posted by: Steve Shiffrin | Aug 8, 2011 5:11:48 AM

Seems odd to write this post without noting at least in passing the actual outcome of the case, which was a remand to decide whether the policy's application was discriminatory. Surely if the problem is the inequality in application of the policy that is a relevant fact to note, even if the decision on the facial challenge was wrong (N.B. even Judge Ripple, who writes separately, agrees that the decision was compelled by circuit precedent, though the question is still open on the national level).

Posted by: Patrick | Aug 4, 2011 2:05:56 AM

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