Wednesday, July 14, 2010

A Funny Thing Happened on the Way to the Limited Designated Public Forum

By Mike Dorf

With the benefit of a bit of distance, I want to discuss an issue that has gnawed at me for some time: What was going on with the lawyers for the Christian Legal Society (CLS) in Christian Legal Society v. Martinez?  For a good account of the case, I recommend Vik Amar's FindLaw column (and not just because he credits my "expertly crafted" brief).  As Vik notes in his column, much of the action took place beneath the surface of the case, in two concessions made by the CLS lawyers: first, in the lower courts, they stipulated that Hastings has an "all-comers" policy; and second, at oral argument, Michael McConnell accepted the characterization of the case as falling within the "limited public forum" category.  (He actually said Hastings had created a "limited designated public forum," a term that has not been used by the Supreme Court but that does appear in lower federal court opinions.)  As Vik notes, McConnell might have had a shot at getting the Court to treat the case as involving a designated (i.e., not limited) public forum, as to which a tougher standard would have applied. 

I honestly don't know why the CLS lawyers stipulated that Hastings has an all-comers policy (only to then run away from the stipulation in the Supreme Court) but I would point out that it need not have been incompetence.  In fact, I doubt it was.  I suspect that they were hoping for a big win.  By stipulating to somewhat unfavorable facts and nonetheless winning (as the lawyers may have thought they would), they could have established the broadest possible right for their client.  After all, the impetus for this lawsuit and others like it is the national organization's desire to promote its "Statement of Faith" with all of its affiliates.  If an all-comers policy had been declared invalid, that would have been a big victory indeed.

With respect to McConnell's argument, I have another hypothesis: I think McConnell went out of his way to formulate an argument that would not leave CLS open to being characterized as homophobic.  He resisted the suggestion by Justice Ginsburg at oral argument (and by me in the AALS brief) that his position entailed a right of a white supremacist student organization to exclude African-American students.  He attempted to distinguish such an exclusion as status-based, whereas CLS, he claimed, only wanted to exclude people based on beliefs.  He thus ran away from what I regard as the core of the right to expressive association--the notion that some associations, by their nature, undermine a group's message.

McConnell's tactical choice was to his credit.  Although conservative, McConnell is not a bigot, which is why I was happy to support his nomination to the bench.  But McConnell's efforts to distance himself and CLS from an expressly anti-gay message left him defending a murky position and highlighted the deepest irony of the case.

Justice Alito said in his dissent that the Hastings policy exemplified the proposition that there is "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning."  This was clearly false, as Justice Alito's own dissent illustrates: Hastings has no problem with a pro-life student group and a Republican student group, so Hastings is not enforcing a liberals-only policy for speech. 

The only real injection of political correctness into the case came from McConnell on behalf of CLS: Afraid (for admirable reasons) of coming across as anti-gay or otherwise bigoted, he did not make the strongest case available by simply asserting that the right of expressive association means a right to exclude on the basis of whatever status undermines an organization's message.


egarber said...

Two questions:

1. Given that the CLS agreed that we're dealing with a limited public forum, was the group's main defense that the policy was unreasonable -- i.e., it couldn't pass even this easier test because of its First Amendment implications?

2. Is there anything about Kennedy's past that might have made something closer to a full public forum a nonstarter? Maybe the lawyers were thinking that no matter what they claimed, Kennedy was already in the "limited" camp -- so it's better to argue with a fighting chance on his terms than to essentially have the case end with one statement: nope, this is a limited public forum, end of discussion.

Michael C. Dorf said...

1) CLS argued that the all-comers policy was unreasonable but its main argument was that it was not applied in a viewpoint-neutral manner. The majority said that issue was not properly before it but that if it was preserved, it could be argued to the lower courts on remand.

2) Not really. If anything, Justice Kennedy has been more willing than other members of the Court to find that public property (or its metaphysical analogue) is a public forum, dissenting on this point in a case involving the NY-area airports in 1992.

egarber said...

>>but its main argument was that it was not applied in a viewpoint-neutral manner.

And if I'm following this correctly, that's one of the baffling dynamics. How can you say it wasn't viewpoint-neutral while also conceding that all comers must be welcome? Did they offer any as-applied evidence? It's not like the school saw that CLS wanted to form a group, then suddenly passed a new rule retroactively**.

**As I understand it, that's how some laws get thrown out on establishment clause grounds. Nothing looks ominous on paper about a "moment of silence," but the goal of it becomes clear when the legislative history is examined. I'm guessing nothing like that happened here.

Charles T. Wolverton said...

Am I correct in assuming that although Hastings has a legal obligation to have a non-discriminatory policy for its institutional operations that it was under no obligation to extend that policy to the private clubs? Or did the benefits attendant to RSO status obligate that extension? And if so, since the RSO benefits were apparently minimal, couldn't Hastings have solved the problem by simply eliminating them, presumably thereby effectively eliminating RSO status and thus any need to expand the policy's applicability?

Ie, was Hastings intent on getting to court - and if so, why? Seems like a lot of trouble to avoid having to discontinue a policy which - no matter how noble its intent - appears arguably to be quite flawed.

Michael C. Dorf said...


Hastings argued that it was obligated by STATE law to apply its nondiscrimination policy to student groups, although as the case unfolded, nothing turned on that point. Other schools take a range of positions.