As the U.S. Supreme Court heard oral arguments on Monday in a case focused on whether a Christian law students' group has a right to exclude people who engage in homosexual behavior, the justices appeared deeply split—not just in their interpretation of the law, but in their understanding of the key facts underlying the dispute.
Many higher-education lawyers are closely watching the case, which pits the Christian Legal Society against the University of California's Hastings College of the Law, because the Supreme Court could issue a decision that leaves colleges and universities having to rewrite their nondiscrimination policies to let religious or political student groups reject potential members based on their religious beliefs or sexual practices.
During Monday's oral arguments, several members of the court's conservative majority expressed sympathy with the Christian Legal Society's argument that the law school's requirement that student groups be open to all infringes on the constitutional right of students to assemble based on religion or viewpoint. The court's liberal members, meanwhile, seemed supportive of the law school's argument that it has an interest in prohibiting officially recognized student organizations from discriminating against gay and lesbian students, regardless of the groups' motives.
Throughout the oral arguments, however, justices on both sides of the court's ideological divide expressed uncertainty about the exact nature and impact of the policy they were being asked to consider, because of remaining disagreements between the parties involved over the basic facts of the case, Christian Legal Society Chapter v. Martinez (08-1371).
Early in the proceedings, Justice Anthony M. Kennedy, sounding exasperated, asked, "What is the case we have here?"
That confusion over facts was seen as offering hope to Hastings, which had discouraged the court from taking up the case. It has accused the Christian Legal Society's lawyers of distorting the record of the case to make the law school's policies seem more hostile to religious organizations than they had been depicted to be when they were upheld by lower courts.
If the Supreme Court resolves its confusion by considering only those facts that both sides have agreed on, it will end up considering the factual record in the light Hastings wanted. If the court throws up its hands entirely and decides it made a mistake in even taking up the case and should not rule on it at this point—something it does with a handful of cases every year—the law school's policies will be left intact.
Considering the court's ideologically conservative tilt, however, many legal observers believe the likeliest outcome is a ruling in favor of the Christian Legal Society, a national organization that excludes gay men, lesbians, and others whose behavior it regards as sexually immoral.
"I'm pretty optimistic," Michael W. McConnell, a Stanford University law professor who argued the Christian Legal Society's case, said after the proceedings.
In its brief to the court, the law school has argued that the only policy it has had—and the only policy considered by the lower courts as a result of stipulations by both sides—is one requiring registered student organizations to be open to all.
"There should not be any debate about what policy is at issue here," Gregory G. Garre, a former U.S. solicitor general, told the court in arguing the case on the law school's behalf.
The Christian Legal Society is arguing that the law school's "all comers" policy is actually the second justification it gave for denying society members on its campus recognition as a registered student organization. Initially, the Christian organization says, the law school cited a policy that the society sees as more blatantly discriminating against religious groups—an antidiscrimination measure that, it says, bars registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual.
"Every time the policy is mentioned, it seems to morph into something else," Mr. McConnell complained to the Supreme Court on Monday.
In an exchange with Mr. McConnell, Justice Kennedy said the case being argued "is a much different case if Hastings treats CLS differently than it treats the Democratic or Republican clubs."
Mr. Garre argued, however, that even if the court decides the law school's policy has changed, it should focus solely on the policy as currently stated, because the Christian Legal Society is seeking a court injunction against the policy now on the books, and not damages related to any policy applied in the past.
Justice Sonia Sotomayor asked Mr. McConnell how the Christian Legal Society can even characterize itself as "banned" from the law school, when the law school lets such nonregistered student organizations use its facilities. Mr. McConnell argued that, as a practical matter, every time members of the group have sought permission to use campus facilities, "they have gotten the complete runaround."
Both Justice Kennedy and Justice Stephen G. Breyer noted the absence of anything in the case record suggesting that significant numbers of students have actually been denied membership to student groups. Justice Breyer wondered whether it is even possible for student groups to enforce litmus tests for membership based on adherence to an ideology, or which groups can be seen as ideological in their view of who should join. "I don't know how the chess club feels about players of tiddlywinks," he joked.
On related points, the legal society and the law school also differ in their assessments of whether the all-comers policy has been consistently applied to every student organization, as well as in their predictions of how religious groups on college campuses will fare if the policy is upheld.
Mr. McConnell argued that the law school does not demand that every registered student organization accept all members, but Justice Antonin Scalia broke from his pattern of lobbing friendly questions at the Christian group's lawyer to scold its legal team for failing to offer solid evidence of inconsistent treatment.
Under questioning from Chief Justice John G. Roberts Jr., Mr. Garre, the lawyer for Hastings, said the law school has required the campus chapter of the National Council of La Raza to accept as members students who are not Hispanic. In response to a question from Justice Samuel A. Alito Jr., Mr. Garre offered assurances that the law school would deny recognition to an Orthodox Jewish organization that gave women a different status from men's.
Mr. Garre acknowledged some groups have membership criteria based on competitions or other measures of some form of merit, but argued that there is nothing discriminatory about such an approach. Justice Roberts asked, however, whether it might be possible for an organization to come up with a definition of "merit" based on a student's beliefs.
The Christian Legal Society has argued that, if all campus groups are required to accept anyone who wishes to join, then unpopular student organizations stand the risk of being subject to disruption or outright takeover by people hostile to their missions. Mr. McConnell raised that prospect in court on Monday, saying Hastings's policy requires a campus NAACP chapter to grant membership to avowed racists, or an environmentalist group to let in people who deny global warming.
Justice Alito seemed receptive to that argument, later asking Mr. Garre about a hypothetical 10-member organization of Muslim students. "If the group is required to accept anybody who applies for membership," Justice Alito asked, "and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?"
When Mr. Garre argued that there is no evidence of student groups being subverted in such a manner under its policy, Justice Alito pressed him, asking what recourse a Christian Legal Society chapter would have against such interference if the law school's all-comers policy is upheld. He questioned Mr. Garre's assertion that the original members of the subverted organization can always chose to leave it, asking in a skeptical tone, "If hostile members take over, former members of CLS can form CLS 2?"
Justice Ruth Bader Ginsburg suggested that existing law-school policies against incivility or disruptive behavior prevent such takeovers from occurring.
Mr. Garre argued that the law school's all-comers policy promotes diversity of opinion within organizations, but Mr. McConnell said its impact is actually a watering down of differences between student groups. "If student organizations are not allowed to have a coherent set of beliefs, there can be no diversity," he said.
The four justices with liberal reputations focused much of their questioning on the law school's interest in prohibiting discrimination.
In exchanges with Mr. McConnell, Justice Ginsburg and Justice John Paul Stevens raised the question of how the professor thinks the law school should deal with student groups that hold or advocate discriminatory beliefs. Justice Ginsburg took her questioning a step further, asking how the law school should deal with a group that holds the belief that women should not occupy leadership positions.
When Mr. McConnell said the group should be granted recognition so long as it does not act on such a discriminatory belief, Justice Ginsburg said, "So they would have to negate their belief in practice?"
Mr. McConnell replied, "People can believe in all kinds of things that are illegal, but that does not mean they can do them."
In keeping with past court rulings showing deference to colleges' own decisions on the basis of academic freedom, Justice Ginsburg suggested that the best option for the court might be to leave Hastings alone to govern student groups as it sees fit. "It may be an ill-advised policy," she said, "but if the school says it is our policy, it is working fine."
Justice Scalia, however, was not nearly as accepting. "It is so weird to require the campus Republican club to admit Democrats, not just to membership, but to officership," he said. "To require this Christian society to allow atheists not just to join, but to conduct Bible classes. ... That's crazy."