By Mike Dorf*
I hate to be the one to say "I told you so" (oh, all right, I love it), but based on reports of the oral argument yesterday, it appears that the Christian Legal Society may become the victim of its own aggressive legal strategy. In his opening brief on the merits and his reply brief, Michael McConnell pressed the claim that Hastings Law School does not even-handedly enforce its "all-comers" rule against all student organizations. Rather, McConnell said, the school had singled out the Christian Legal Society for adverse treatment. Yet as Hastings, respondent-intervenor Hastings-Outlaw, and respondent's amici (including the AALS, represented by yours truly) noted in our briefs, the parties stipulated before the district court that Hastings in fact has and enforces an all-comers rule. We suggested that if the Court thought the case turned on whether Hastings discriminates against the CLS based on its religious viewpoint, then it should Dismiss the Writ as Improvidently Granted, or D.I.G. That is the standard procedure the Court uses when it has granted a petition for a writ of certiorari on the assumption that the case presents an issue it does not really present.
To be sure, the Court doesn't have to D.I.G. If a majority of the Justices thought that the even-handed application of an all-comers policy would still be unconstitutional because of the burden it imposes on CLS, it could rule for CLS despite not knowing whether Hastings really enforces the policy even-handedly. And of course McConnell and petitioner's amici argue in favor of just that result as an alternative to their argument that Hastings discriminates against CLS.
Thus, the fact that the Court is considering D.I.G.ging cannot be good news for CLS. If five Justices thought that a real all-comers policy were clearly unconstitutional, then they would be happy to accept the stipulation. Indeed, the fact that McConnell placed so much emphasis on the supposed discriminatory character of enforcement suggests that he himself was worried about this case.
And there's more good news. Even if the Court were to: 1) accept the stipulation at face value; and 2) invalidate the all-comers policy as unreasonable; 3) law schools and other public institutions would still be able to enforce viewpoint-neutral anti-discrimination policies against organizations such as CLS---unless the Court were to write the sort of sweeping opinion it seems very unlikely to write here. Of course, I think that step 2) would still be mistaken because, as the AALS brief explains, the all-comers rule is both a reasonable means of enforcing an anti-discrimination policy and serves the important interest of maintaining open access in its own right. Still, the real prize in cases involving Christian Legal Society chapters (and like organizations) is the ability to apply anti-discrimination principles. (I still have my doubts about whether the all-comers rule is best as a matter of policy. Indeed, I think cases of this sort present hard policy questions even for an anti-discrimination rule. But hard policy questions need not be hard constitutional questions.)
Should the Court end up D.I.G.ging, it likely will eventually have to take a case arising out of a conflict between a CLS chapter and a law school with an anti-discrimination policy. But a D.I.G. could forestall that decision for years. And as a certain Chief Justice likes to say, if it's not necessary to decide an issue, it's necessary not to decide that issue.
* I am writing this blog post on my own behalf, rather than in my capacity as a lawyer for the AALS--although I am confident that what I say here is fully consistent with the interests of the AALS. But in case there's any doubt, I did not run this by anyone at the AALS.