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WASHINGTON – During oral arguments Monday in a case asking whether a public law school has the right to deny benefits to a student group that excludes gays – and requires all members to share its beliefs – exchanges between the justices of the Supreme Court and lawyers got heated at times.

The Christian Legal Society chapter at Hastings College of the Law at the University of California brought the case, Christian Legal Society v. Martinez.

The student group argued that the law school violated its members’ First Amendment rights to free speech, free association and free exercise of religion when it denied the group funding, the use of the school’s name and other privileges.

The school countered that the privileges were pulled because the group – which excludes people who do not agree with its core beliefs, including the prohibition of gay relationships – violated the school’s anti-discrimination policy.

At oral arguments, the justices and attorneys first wrangled over facts that the parties disputed despite submitting a stipulated joint statement of facts. The group claims the school administered its nondiscrimination policy in biased way, which the school denies.

Then, getting to the substance of the case, the justices asked how far students’ association rights extend.

“Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?” asked Justice Sonia Sotomayor of the group’s attorney, Michael W. McConnell of Stanford Law School.

“We have only challenged the beliefs, not status,” McConnell said. “Race, any other status basis, Hastings is able to enforce.”

“What if the belief is that African Americans are inferior?” asked Justice John Paul Stevens.

“You can have a student organization of that type, I suppose,” said Justice Antonin Scalia. “It wouldn’t include many people. But if there were such an organization, that belief [would be] required, right?”

“That’s right, but they could not go the next step and exclude someone on the basis of status,” McConnell said.

Pretext?

Gregory G. Garre, partner in the Washington office of Latham & Watkins, argued on behalf of the law school.

Sotomayor asked Garre about the student group’s argument that the school applied the anti-discrimination policy in a way that was in itself discriminatory by allowing some groups, such as political ones, to exclude students who disagree with the group’s beliefs.

When Garre pointed out that the case “wasn’t litigated as a pretext case,” Scalia jumped in.

“Frankly, one reason why I am inclined to think this is pretextual is that it is so weird to require the campus Republican Club to admit Democrats,” Scalia said. “To require this Christian society to allow atheists not just to join, but to conduct Bible classes? That’s crazy!”

Before Garre could respond to Scalia, Justice Anthony Kennedy jumped in.

“Why doesn’t this just all work out?” Kennedy asked. “If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them.”

A decision is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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