Monday, April 19, 2010
The transcript (here) of today's oral argument in Christian Legal Society (CLS) v. Martinez revealed a case in procedural disarray.
Michael McConnell, arguing for CLS, had barely pronounced his well-crafted first sentence (“If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study, and if CLS does not promise to allow this the college will bar them from its forum for speech.”), when Justice Kennedy interrupted with the problem that would dominate the oral argument: What exactly is the Hastings Law School policy that CLS challenges?
The answer to this query (as to many others posed by the Justices) seemed to reside in the many stipulations entered into by the parties.
One contender as the pertinent policy was the law school's nondiscrimination policy that includes sexual orientation. However, this seemed a distant second to the so-called “all-comers” policy. This policy provides that student organizations must (to obtain law school funds) allow any student to participate, become a member, or hold a leadership position in the organization. Thus, Democrats and Republicans can get into each other’s clubs.
McConnell clarified: "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis Hastings is able to enforce."
JUSTICE STEVENS: What if the belief is that African Americans are inferior?
MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status.
Later, Gregory Garre, arguing for Hastings, tried to make the argument that sexual orientation is likewise a status, although CLS excludes “homosexuals"
GARRE: "they appear to take off the table race, and what they say, other status considerations. I'm not sure why that excludes sexual orientation. But if you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line. And I think a school can reasonably say: We don't want to get into this business at all; we want to allow all comers for all school-subsidized.
The identification of Michael McConnell, a CLS member, with the CLS position was evident by his use of the first person plural:
We are barred from access to the -- to Hastings' e-mail system; we can't post notices on the usual bulletin board; we are left out of the weekly -
JUSTICE SOTOMAYOR: There are bulletin boards. There are other ones.
MR. McCONNELL: There -- there is -- there are ones for the -- for campus and student groups, and then there is another one for community groups. We are allowed to post on the community group, but we are not allowed to post on the boards that -- that students look to for where student activities occur. We are left out of the -- a very important point -- the student organization fair at the beginning of the year where groups introduce themselves to the 1L's as they -- as they come in.
There was also a very confused colloquy on the relevance of same-sex marriage:
JUSTICE BREYER: If -- if a homosexual person said, I want to belong to this club, and I believe in its principles, I don't believe in sexual relationships before marriage, and that's why I want to work for homosexual marriage, which I do, so my consistency there, is that person -- I am consistent in what I work for, what I believe, and on -- as far as premarital sex is concerned, it's totally 100 percent with your organization that you are representing; would they admit that person or not?
MR. McCONNELL: Yes. There is a joint stipulation to that effect, No. 34.
JUSTICE SCALIA: CLS doesn't have any -- any belief that marriage is between a man and a woman?
MR. McCONNELL: It -- it does. I thought that Justice Breyer posited the case of a person of homosexual orientation who shares that belief.
JUSTICE SCALIA: No, no, no, no. JUSTICE BREYER: He shares the belief that there should be no premarital sex -
JUSTICE SCALIA: But he wants to marry -
JUSTICE BREYER: -- and he says that's why I am working for Proposition 8 or whatever the proposition, or against it -
MR. McCONNELL: Oh, oh, I'm sorry, Justice Breyer -
JUSTICE BREYER: I'm working to legalize homosexual marriage.
MR. McCONNELL: I'm sorry. I misunderstood your question. This is a religious group. Their understanding of marriage is based upon -
JUSTICE BREYER: But the answer is no, that person -
MR. McCONNELL: Not if that person was engaging in sexual conduct that is contrary to the -
JUSTICE BREYER: No, he's not, because his sexual conduct -
MR. McCONNELL: -- or, I'm sorry -
JUSTICE BREYER: -- until marriage is made lawful, at which point he intends to engage in sexual conduct.
MR. McCONNELL: That's right. If the person -
JUSTICE BREYER: That person.
MR. McCONNELL: Regardless of what he intends to do, if he does not agree with the -- the organization on the point of -- of marriage, then he can be -- he can be excluded from leadership in the group. Again, he's able to attend all the activities. CLS has all of its activities entirely open to everyone. And what it objects to is having -- is being run by non-Christians, because after all, this is a group whose very purpose is -
Justice Alito did not participate in this colloquy, but in his questioning of Garre – who was heavily questioned by both Alito and Roberts, Alito asked: Do you think this case deserved a two-sentence decision in the Ninth Circuit?, and then dissatisfied with Garre’s answer about another recently decided Ninth Circuit opinion as being controlling, stated:
The answer is yes, this case which is before us has produced hundreds and hundreds of pages of amicus briefs, deserved two sentences in the court of appeals?
Yet despite those hundreds of pages, it may be that the Court issues a similarly brief opinion:
JUSTICE BREYER: So with that great unclarity, asked to decide a constitutional issue where I feel I need more facts and I don't have them, the more justification to know what it really is, which I don't have, what should I do?
MR. GARRE: If the Court believes that, respectfully, we think it should dismiss the writ as improvidently granted. This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.