Christian Legal Society Loses Second Hastings Proceeding

The 9th Circuit Court of Appeals last week rejected the final challenge, at that level, at least in the Hastings Law School case of Christian Legal Soc'y v. Martinez.  The Supreme Court had limited its review to the issue whether the Hastings nondiscrimination policy which denied official recognition to the CLS was constitutional or not because it prohibited discrimination in some areas (religious) and not others.  This, the Court identified as the uneven application argument.

The Supreme Court remanded the case to the 9th Circuit to determine the other issue, whether the policy was selectively enforced, which the Court identified as the pretext argument.  The Supreme Court ordered consideration of the issue “if, and to the extent, it is preserved.” 

The 9th Circuit reviewed the briefs in the case and compared them to its process for review.  The Court stated that it considers issues that are clearly articulated in (1) “a statement of the issues presented for review”; (2) “a summary of the argument”; and (3) “the argument” section itself.  It found that while there are various statements in the briefs that could support arguing a pretext claim, these were directed to the Court under the uneven application argument.   Consequently, these did not preserve the pretext claims.

I would expect a petition for rehearing en banc, and if that fails, a second petition for certiorari to the Supreme Court.  The original case was decided on a 5-4 split, suggesting that 4 Justices could approve the petition.  I'm not sure the outcome would change with Justice Kagan having replaced Justice Stevens since the original case was decided.

The opinion in Christian Legal Society v. Wu (No. 06-15956) is here. [MG]