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.