CHRISTIAN LEGAL SOCIETY CHAPTER v. MARTINEZ

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ORAL ARGUMENT OF MICHAEL W. McCONNELL ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 08-1371, Christian Legal Society Chapter of the University of California -- Hastings v. Martinez.

Mr. McConnell.

Mr. McConnell: Mr. Chief Justice, and may it please the Court: 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.

The First Amendment -- under the First Amendment, rights run the opposite way.

Hastings is the government; CLS is private.

A public forum for speech must be open and inclusive, but participants in the forum are entitled to their own voice.

Justice Anthony Kennedy: Now, these are fundamental arguments, and I don't want to spend too much time on factual matters because that's frustrating to both the Court and the counsel.

But we do have the problem of the stipulation.

The stipulation makes it clear that Democrats and Republicans can both get into the other one's club.

That's the Stipulations 17 and 18 at 220 of the Joint Appendix.

You want to get away from the stipulation by what, according to your reply brief, Hastings said in its answer, but the stipulation supersedes the answer.

So if both counsel could just address for a moment: What is the case that we have here?

You have different views on what case is before us.

Mr. McConnell: Happy to, Justice Kennedy.

If you just look with me at Joint Stipulation 17, I think it makes this completely clear.

That's on page 221 of the Joint Appendix, and it states:

"Both parties agreed that in order to become a registered student organization a student organization's bylaws must provide that its membership is open to all students. "

--that's the all-comers policy --

"and the organization must agree to abide by. "

--"abide by the Nondiscrimination Policy".

That's capital N, capital P, a defined term.

The 15.

That is what we have been calling the written policy.

And the idea that membership must be open to all students is described in Joint Stipulation 18, which is simply a description of what that policy is.

Justice Antonin Scalia: But doesn't -- doesn't the one -- isn't the all-comers policy broader than the nondiscrimination policy, so that if you comply with that you automatically comply with everything in the nondiscrimination clause?

Mr. McConnell: It is broader.

It's our position that either of these justifications for excluding CLS is unconstitutional.

Justice Antonin Scalia: Yes, but -- but the latter, the nondiscrimination policy, you assert is -- is not viewpoint neutral, that it has a particular impact upon a religious organization; whereas, the other policy, the all-comers policy, applies to everybody, and that argument is not available to you.

Mr. McConnell: Justice Scalia, our argument -- there are two policies.

They have invoked both.

We believe both are unconstitutional, but for slightly different reasons.

The written policy is unconstitutional because it's overtly viewpoint discrimination -- discriminatory and thus violating the principles of cases like Rosenberger and Widmar.

The all-comers--

Justice Ruth Bader Ginsburg: But, Mr. McConnell, Justice Scalia had just made the point that the all-comers policy overwhelms the other, so that I would like you to deal up front with the all-comers policy that the dean in her deposition said, loud and clear:

"Our policy is all-comers. "

"Yes, Republicans have to be admitted to the Democratic group and vice versa. "

So unless you are challenging the veracity of the dean after stipulating, as you did, that all-comers is the policy, I don't see how we can listen to your argument about the so-called written policy.

Mr. McConnell: --Well, both policies we contend are unconstitutional.

Let's begin with the all-comers policy, and when you conclude that it is unconstitutional, we will also need to deal with the other since they have two arrows in their quiver.

Justice Anthony Kennedy: You can do that, but you -- it's a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Clubs.

That's a much different -- frankly, it's a much easier case for you.

But it's -- it's frustrating for us not to know what kind of case we have in front of us.

Mr. McConnell: Your Honor, it's a case where the -- where Hastings has put forward two quite different justifications for denying our right and both of them are unconstitutional.

Let's begin with the all-comers policy.

Justice Samuel Alito: Mr. McConnell, when I read -- when I read the papers that Hastings submitted to the district court at the same time that the joint stipulation was submitted, I saw one reference after another to an allegation that Hastings was applying its policy in a discriminatory manner, that it was not in fact insisting that all registered student organizations admit all applicants.

And when I read their brief in the Ninth Circuit, I saw that point reiterated again and again.

So that led me to believe that what was stipulated was not that in fact they had a policy which they enforced under which anybody who applied to any group would be admitted, but that this was what Dean Kane had announced.

That was the stated policy, but not necessarily the actual policy that was employed.

And that was the argument it seemed to me that CLS was making; isn't that correct?

Mr. McConnell: That's entirely correct, Justice -- Justice Alito.

That's--

Justice Antonin Scalia: Well, you should -- if that was it you should have brought in some -- some evidence of different treatment of other groups.

And there -- as I--

Mr. McConnell: --Justice--

Justice Antonin Scalia: --There is none of that except your citation of the bylaws of two groups in your brief, as I--

Mr. McConnell: --Well, but that is in fact the evidence.

When--

Justice Ruth Bader Ginsburg: But, Mr. McConnell, here is a statement, a stipulation.

It's a stipulation for summary judgment.

It says: District Judge, you take this to be the fact: Hastings requires that registered student organizations allow any student to participate, become a member, seek leadership positions in the organization.

That is not qualified.

It says: District Judge, here are the facts that we stipulate.

It doesn't say this is what the dean says, but it's not really enforced.

It's not qualified at all.

Mr. McConnell: --Justice Ginsburg, we -- we stipulated that this was their policy.

That stipulation contains nothing about the historical facts as to how Hastings has actually applied it.

But let's talk about the policy, because it is unconstitutional--

Justice Antonin Scalia: --I wish you would.

You are going to waste your whole time just discussing this stipulation point.

Let's assume -- let's assume that--

Mr. McConnell: --Yes.

Justice Antonin Scalia: --the latter is the policy.

Mr. McConnell: Yes, because the policy is I think blatantly unconstitutional.

It is manifestly overbroad with respect to any purposes stated.

And, of course, in Healy v. James, this Court held that any restriction on a student speech forum may be no more extensive than is required by its purposes.

It is also a frontal assault on freedom of association.

Freedom of association is the right to form around shared beliefs.

To say that groups may not form around shared beliefs--

Justice Sonia Sotomayor: So is this an exception that you want to talk about as it is applied to religious groups, or 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?

Mr. McConnell: --Not at all, Justice Sotomayor.

Our position is that--

Justice Sonia Sotomayor: So then, what is -- what is wrong with the purpose of a school to say we don't wish any group that doesn't -- that discriminates?

Mr. McConnell: --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.

But they may not tell a group--

Justice John Paul Stevens: So, what if the belief--

Mr. McConnell: --that you just have to let you in that don't agree with you.

Justice John Paul Stevens: --What if the belief is that African Americans are inferior?

Mr. McConnell: Again, I think they can discriminate on the basis of the belief, but not on the basis of the status.

So that if the--

Justice Antonin Scalia: You could have--

Mr. McConnell: --if there were racist organizations--

Justice Antonin Scalia: --a student organization, I suppose, of that type.

It wouldn't include many people.

But if there were such an organization, I assume that they would have that -- that belief required, right?

Mr. McConnell: --That's right, but they could not go the next step and exclude someone on the basis of status, under our--

Justice Stephen G. Breyer: Doesn't this say the opposite?

It says we are -- you have to let anybody in -- anybody -- regardless of their status or beliefs.

So you can't discriminate on the basis of status or belief.

That's what the policy says I just read.

It doesn't say you can; it says you can't.

Mr. McConnell: --It's that the group may not confine its leadership based upon its beliefs.

That means that--

Justice Stephen G. Breyer: That's what you say, but that's not what the policy says.

The policy says that you have to let everybody in, regardless of their status or belief.

Mr. McConnell: --Right.

And -- and our view is that the status--

Justice Stephen G. Breyer: So you cannot discriminate on the basis of status or belief.

Mr. McConnell: --The status half of that is perfectly constitutional and--

Justice Antonin Scalia: You say you--

Mr. McConnell: --the belief half of that is not.

Justice Stephen G. Breyer: --you have to -- you have to let these organizations discriminate on the basis of belief.

And they say: No, we don't want to; that's too complicated for us to figure out which ones we should, which ones we shouldn't.

We'd rather let them work off-campus.

We just don't want to get into this business.

It's not just against religion.

It might be against a Turkish-speaking society that thinks Turkish is extremely important to speak or a chess club that thinks the same.

It could be a lot of people.

Now, why do you -- what's wrong with us, a First Amendment -- an organization itself affected with First Amendment interests, saying we just don't want to have those on campus organizations, too much trouble.

Mr. McConnell: What is -- what is wrong with that is that restrictions on a designated public forum must be reasonable in light of the purposes of the forum.

The purpose of the forum is set forth in Joint Stipulation Number 8.

It is to promote a diversity of viewpoints among registered student organizations.

If the student organizations are not allowed to have a coherent set of beliefs, there can be no diversity among them.

Justice Sonia Sotomayor: But this sounds like a debate over whether the policy as the school believes it should be implemented is not a good one.

But isn't that their choice?

Don't we give deference to an educational institution in terms of the choices it makes about effecting its own -- its purposes?

And the purpose here is we don't want our students to discriminate.

Mr. McConnell: There is a stipulation as to what the purpose is, and the purpose is to promote a diversity of viewpoints among registered student organizations.

Justice Ruth Bader Ginsburg: And is--

Justice Stephen G. Breyer: That's their way of doing that.

Mr. McConnell: It is a stipulated fact.

Justice Ruth Bader Ginsburg: --And Hastings takes the position that it's all in favor of diversity, not only among the groups but within the groups.

So--

Mr. McConnell: Which is not the joint stipulation.

The stipulation is that the purpose of the forum is diversity among groups.

Their policy is not -- it's not only just unreasonable in light of it; it is contrary to it.

Justice Ruth Bader Ginsburg: --It is that they--

Mr. McConnell: It defeats the purpose of the forum.

Justice Ruth Bader Ginsburg: --They say, yes, we believe in diversity among groups, but we also believe in diversity within the group; that's a good thing.

They are not backing off from: We think diversity among groups is fine.

Mr. McConnell: They say that in their brief, but that is not the stipulated fact in the case.

Justice Stephen G. Breyer: Let me make an imaginary example, and that's--

Justice Antonin Scalia: --Where -- where is the stipulation?

Mr. McConnell: It's page 216 in the Joint Appendix, Joint Stipulation Number 8.

It is the only stipulation in the case having to do with what the purpose is of the RSO forum.

Justice Antonin Scalia: Wait a minute now.

A diversity--

Mr. McConnell: "Hastings seeks to promote a diversity of viewpoints among registered student organizations. "

And note how destructive an all-comers policy directed on belief is toward -- toward that.

That means that if, for example, there's an NAACP chapter, it would have to allow a -- a racist skinhead to sit on -- in on its planning meetings.

That means that if there's an environmentalist club that has a demonstration in Sacramento in favor of cap-and-trade legislation, they would have to allow--

Justice Ruth Bader Ginsburg: It may be--

Mr. McConnell: --a global warming skeptic to--

Justice Ruth Bader Ginsburg: --It may be an ill-advised policy, but the school says: It's our policy.

It's working fine, and all the -- the hypotheticals about sabotage, takeover, they haven't happened.

Mr. McConnell: --They haven't happened because this policy came into being -- was announced for the first time in 2005.

So there couldn't possibly be any -- any record of that.

Justice Antonin Scalia: --This -- this was not the policy on the basis of which CLS was excluded; is that correct?

Mr. McConnell: That's correct, it was not.

Justice Antonin Scalia: It -- when they were refused participation in the -- in the student organization program, they were not told about the all-comers policy.

Mr. McConnell: That's correct.

Joint Stipulation Number 40 states clearly that the -- that the -- that they were informed, and I quote:

"They were informed that CLS bylaws were not compliant with the religion and sexual orientation provisions of the Nondiscrimination Policy. "

Justice Samuel Alito: And was there any written document memorializing this policy prior to the time when the former dean gave her deposition?

Mr. McConnell: Never.

And--

Justice Samuel Alito: And is the -- is the policy as articulated by the dean in her deposition the same as the policy that Hastings now claims it has in its brief?

Mr. McConnell: --I don't think so.

Every time the policy is mentioned, it seems to morph into something else.

When the dean announced it at the deposition, she said all students may participate on the -- in all activities, period, full stop.

Now we find out in their brief, well, their -- groups can have conduct limitations, they can require dues, they can have attendance requirements, they can have competitive contests to see whether they get in.

This -- this policy is -- it changes with every wind.

And -- but the fundamental problem with this -- with this is what -- what this Court stated in Velazquez v. Legal Services Corporation, that you cannot allow -- you cannot allow the terms of the policy just to say that whatever their policy is, that that determines the contours of the program, because that would render the First Amendment a -- a nullity.

Justice Anthony Kennedy: Of course, that was not a religion case.

Your argument at its most fundamental level is that religious organizations are different because religion is all about belief.

But at that point don't we also have a tradition of separation?

That's the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs.

And it -- it -- it seems to me we have to consider that when we are considering your argument.

Now, you can cite Rosenberger, but -- but I think this is different from that.

Mr. McConnell: The separation is between church and state, but this Court has held over and over again that speech forums -- that people participating in a speech forum are not the state.

The state is Hastings.

We are perfectly private.

There is nothing wrong with a religious organization, even on public--

Justice Sonia Sotomayor: You're not--

Justice Antonin Scalia: Anyway, as I understand your argument on the all-comers policy, it is not an argument that -- that is based upon the religious nature of CLS.

You would make the same argument of unconstitutionality with respect to the student Republican Club, wouldn't you?

Mr. McConnell: --We would.

Justice Antonin Scalia: Or--

Mr. McConnell: Now, we do -- there is in addition a free exercise argument, but I don't -- but in this case what the Free Exercise Clause protects is exactly what the associational freedom test would protect for everyone.

Justice Anthony Kennedy: I had thought that an important part of the case, of your case, is that belief is inherent to the idea of religious expression and must be protected.

But if the protection causes problems within the school for other policies, then doesn't the separation policy come into play?

That's -- that's what I'm asking.

Mr. McConnell: Again, separation does not apply to private parties when they are operating, even on government property.

Justice Ruth Bader Ginsburg: Mr. McConnell, let's say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that's based on their fundamental belief that that's what the Bible instructs.

On your view, must Hastings give this organization status as a recognized student organization?

Mr. McConnell: No, Justice Ginsburg.

Our position is it is unconstitutional to -- to prohibit groups to form around beliefs but not around status.

Justice Ruth Bader Ginsburg: But the belief is -- this is the belief.

Mr. McConnell: They can insist that -- that everyone who participates in the group have that belief, and that, as Justice Scalia said, may mean it's going to be a very small group.

But they cannot discriminate on the basis of status.

But belief -- as this Court said in Cantwell v. Connecticut, belief, the freedom to believe, is absolute.

Justice Ruth Bader Ginsburg: So, they -- they would have to negate their belief in their practice.

They could believe this, but they couldn't implement it?

Mr. McConnell: Well, it's not unusual to say people -- people can believe in all kinds of things that are illegal.

That doesn't mean that they can do them.

It's not a -- it's not an unfamiliar distinction in our law.

But let's look at--

Justice Antonin Scalia: --This was the basis -- your distinction between status and belief was the basis for your saying that the original policy, whatever -- whatever we call it -- what is the name of it?

Mr. McConnell: --The written policy?

Justice Antonin Scalia: The written policy -- when it forbids discrimination on the basis of sexual orientation was complied with by CLS because it would not discriminate on the basis of orientation, only on the basis of belief.

Mr. McConnell: That's correct.

Justice Stephen G. 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's a joint stipulation to that effect, Number 34.

Justice Antonin 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 Antonin Scalia: No, no, no, no.

Justice Stephen G. Breyer: He shares the belief that there should be no premarital sex--

Justice Antonin Scalia: But he wants to marry--

Justice Stephen G. 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 Stephen G. Breyer: --I'm working to legalize homosexual marriage in which--

Mr. McConnell: --I'm sorry.

I misunderstood your question.

This is a religious group.

Their understanding of marriage is based upon their--

Justice Stephen G. Breyer: --So they would not -- the answer is no, that person--

Mr. McConnell: --Not if that person was engaging in sexual conduct that is contrary to the--

Justice Stephen G. Breyer: --No, he's not--

Mr. McConnell: --Well, in that--

Justice Stephen G. Breyer: --because his sexual conduct--

Mr. McConnell: --or -- I'm sorry.

Or--

Justice Stephen G. Breyer: --he will refrain until marriage is made lawful--

Mr. McConnell: --Right.

Justice Stephen G. Breyer: --at which point he intends to engage in sexual conduct.

Mr. McConnell: That's right.

If the person--

Justice Stephen G. 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 Sonia Sotomayor: --You keep talking about being forced to let people in.

And this is where I'm a little bit confused by your yellow brief.

The school has taken the position that any group can apply to use its facilities; priority and funding, et cetera, will only go to recognized student groups.

But your group is not being excluded or ostracized completely from the school.

Presumably, you can meet in the cafeteria.

You can meet in open spaces in the school.

You can apply like everyone else, any other nonstudent group, recognized student group.

But you have been saying repeatedly in your presentation that you're barred from the campus.

And so I'm a little confused as to exactly--

Mr. McConnell: --What I -- Justice Sotomayor, I believe what we consistently say is that we have been denied the right to meet on campus.

And that is completely true.

Look -- if you would look at Joint Stipulation Number 10, at the top of page 219, it provides that CLS, although not currently registered, is eligible to apply for permission for rooms.

But there is no stipulation that that will ever be granted, and the record shows that every time CLS has requested permission to meet they have gotten a complete run-around.

They have been told: Well, you have to apply through your lawyer, and then their -- they don't get an answer on time and when they get an answer it's, well, because you're not a registered student group--

Justice Sonia Sotomayor: --But let's -- could we--

Mr. McConnell: --there is not room for you.

Justice Sonia Sotomayor: --Let's -- let's assume, because I'm not quite sure what the record is on these issues -- I'm somewhat confused on the factual assumptions underlying this case.

But let's assume two things: One, that in fact you have the option of applying for use of the space and that, assuming there are no conflicts and other things that -- that are in the normal course would preclude your use, that you would be granted use.

Is your argument different in that situation?

Mr. McConnell: Justice Sotomayor, even the access to campus communications is absolutely essential, as this Court said in the -- in Healy v. James.

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 Sonia Sotomayor: There are bulletin boards.

There are other ones.

Mr. McConnell: --There -- there's -- there are ones for the -- for campus and student groups, and there's another one for community groups.

We're allowed to post on the community group, but we're 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 One L's as they -- as they come in.

Justice Sonia Sotomayor: Are you disputing that this is--

Mr. McConnell: We're -- we're barred from that.

Justice Sonia Sotomayor: --Are you disputing this is a limited forum, public forum?

Mr. McConnell: No, it's definitely a limited designated public forum.

Justice Anthony Kennedy: But that's different from Cantwell.

Cantwell is where the Jehovah's Witness plays the record on the -- on the street.

And -- and--

Mr. McConnell: I only cite Cantwell for the proposition that belief is absolute.

Justice Anthony Kennedy: --No.

No.

And Cantwell said that belief is central to -- to religions and that people would disagree.

But that's precisely why Hastings might argue to us that -- that this is inconsistent with their idea of what this forum is.

And if -- will you just address that, please?

Mr. McConnell: I would address it.

The forum -- the purposes of the forum are undisputed.

They are to provide a diversity of expression among student groups.

Their policy disserves the purpose of the forum and therefore cannot be regarded as reasonable in light of that.

And what is more, what they have done is -- it's also not reasonable because it's independently unconstitutional.

What they have done is they've said you may not have fundamental freedom of association or, if you do, we will withdraw an otherwise available benefit from you.

As recently as the unanimous decision of this Court in FAIR v. Rumsfeld, the Court reiterated the -- the now I think 100-year old principle that constitutional rights may not be penalized by the withdrawal of benefits any more than they can by -- by direct prohibition.

I see that my white light is up, and I'd like to reserve the remainder of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, Mr. McConnell.

Mr. Garre.

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENTS

Mr. Garre: Thank you, Mr. Chief Justice, and may it please the Court: This case was decided by both courts below on the premise, which is not disputed at any point in the petition for certiorari, that Hastings reserves the funding and benefits that go to student groups that obtain school recognition to groups that choose to admit all students--

Chief Justice John G. Roberts: Well, then why do you have--

Mr. Garre: --regardless of their status or their beliefs.

Chief Justice John G. Roberts: --Why do you have a policy, a written policy -- you don't have a written policy that says anything about all-comers.

You've got a written policy that says you can -- you can't discriminate on the basis of only one type of belief, religious belief.

Mr. Garre: Mr. Chief Justice, first of all, this is a case about injunctive relief.

As a matter of law, the only policy that's relevant is the current policy, and that's the one--

Chief Justice John G. Roberts: Well, then why is--

Mr. Garre: --that both sides agree is in place.

Chief Justice John G. Roberts: --Is this nondiscrimination policy no longer on the books?

Mr. Garre: No.

It's -- it's the way in which Hastings implements the nondiscrimination policy in this particular forum.

And, again, look at the Ninth Circuit decision in this case.

It's--

Justice Antonin Scalia: That is not an implementation of the nondiscrimination policy.

I mean, the two policies are quite different.

Now, are you telling us that the written policy is no longer operative?

Mr. Garre: --No, it -- Justice Scalia, this is--

Justice Antonin Scalia: No, what?

No, it's not operative or no, you're not telling me that?

[Laughter]

Mr. Garre: --It is operative.

This -- the all-comers policy is how it's implemented in this context.

And the written policy applies not only to the enumerated characteristics; it applies to any arbitrary unreasonable discrimination, and the law school--

Chief Justice John G. Roberts: Well, it doesn't -- it doesn't say that.

Mr. Garre: --It does, Your Honor.

It says in the first paragraph on -- this is on page 220--

Chief Justice John G. Roberts: Right.

Mr. Garre: --of the Joint Appendix: The college is committed to a policy against legally impermissible, arbitrary, or unreasonable discriminatory practices.

And then it also goes on and enumerates specific factors.

And this is spelled out, I believe in page--

Chief Justice John G. Roberts: So they -- so you're saying the second paragraph is totally unnecessary.

You say the first paragraph says you can't discriminate on any basis, and the second paragraph spells out the basis.

So why do you do have the second paragraph?

Mr. Garre: --I think it provides additional guidance.

But -- but, again, there shouldn't be any debate about what policy is at issue here.

The Ninth Circuit's decision in this case is two-sentence long.

The first sentence describes the policy at issue in this case.

And it says: "The parties stipulate"--

Justice Samuel Alito: Do you think this case deserved a two-sentence decision in the Ninth Circuit?

Mr. Garre: --Justice Alito, it was decided in the wake of the Ninth Circuit's decision in Truth, which had not only garnered a substantial panel decision but had garnered serious consideration on -- on rehearing.

So this case, the Ninth Circuit properly concluded, was controlled by the Truth decision.

So in that respect--

Justice Samuel Alito: So 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?

Mr. Garre: --In the -- in the sense that it was backed up by the Truth decision, yes.

But look at the petition for certiorari in this case.

Nowhere did -- did Petitioners challenge the Ninth Circuit's characterization of the policy at issue.

The petition says on page 2 that

"There are no disputed issues of material fact. "

Justice Samuel Alito: But hasn't it been -- hasn't it been CLS's position from the very beginning of this case that Hastings has not in fact required every group to admit any student who applies?

Don't they say that over and over again in their district court papers, in the court of appeals briefs, and in the cert petition?

Mr. Garre: If -- if they believe that that caused the school to adopt a different policy, they shouldn't have stipulated to the policy that they did.

And they should have challenged at a minimum--

Justice Antonin Scalia: Well, they stipulated that the policy exists.

They didn't stipulate that it is -- is being faithfully applied by Hastings.

What do you do about the -- the -- the two organizations' bylaws referred to in the -- in the Petitioner's brief, which clearly do -- conflict with the so-called all-comers policy?

Mr. Garre: --All of the bylaws that they've pointed to, Justice Scalia--

Justice Antonin Scalia: All of the bylaws--

Mr. Garre: --that they have pointed to in their brief--

Justice Antonin Scalia: --Yes.

Mr. Garre: --Justice Scalia, either, number one, explicitly say that the organization will comply with the rules and regulations of the school or say that they will admit all students.

That includes all the bylaws.

Now, they have pointed to various things from the bylaws, and this evolved as they've tried to create material factual issues in this Court.

One of the things they've pointed to is the bylaws saying, like the Outlaw bylaw, that says that students who are members of a group can be excelled if they -- expelled if they engage in disruptive or gross misconduct.

There is nothing inconsistent about that with the school's policy.

The school's interest is not in allowing students to disrupt the activities of students' groups--

Chief Justice John G. Roberts: Well, they -- they quite -- quote the bylaws of the National Lawyers Guild, which says any member must

"agree with the objectives of the organization as set forth herein. "

That's not all-comers.

That's a bylaw that restricts an organization according to its -- members can't join unless they sign on the dotted line that they believe in objectives of the organization.

Mr. Garre: --There's a fundamental difference between a group that says people of a particular sexual orientation are not allowed to become members--

Justice Antonin Scalia: Well, they don't say that.

Chief Justice John G. Roberts: It has nothing to do with--

Justice Antonin Scalia: They don't say that.

Chief Justice John G. Roberts: --It's got nothing to do with sexual -- well, I don't know the National Lawyers Guild, but they say you have got to agree with the objectives of the organization.

Mr. Garre: --Justice Scalia, the district court made a -- may I?

Chief Justice John G. Roberts: No, start with mine.

Mr. Garre: Okay.

My apologies.

[Laughter]

Mr. Chief Justice, as -- as Dean -- as director of student services testified, the fact that the bylaws may say we want students who are interested in our activities doesn't mean that the bylaws are excluding students who want to join.

And there's a fundamental difference, again, between saying students that have these particular beliefs or status cannot become members of our group--

Chief Justice John G. Roberts: It seems to me that your position is continually evolving wherever the First Amendment pressure comes.

You've got a written nondiscrimination policy.

And then you say, well, yes, but we use an all-comers policy.

You've got an all-comers policy, and then groups don't actually follow the all-comers policy, and you have another answer to that.

It seems to me that we should go with -- why shouldn't we go with the written policy and the written bylaws?

Mr. Garre: --Well, with respect, Your Honor, I think it's my friend's position that is evolving.

You have joint stipulations before you as to what the policy is.

You have the decisions of both courts below describing that policy consistently with the joint stipulations, and you have a petition for certiorari that never challenges that the all-comers policy is at issue.

Justice Sonia Sotomayor: What do we do with the selective application argument, which is what Justice Alito referred to and Justice Scalia, which is it is troubling that some of these bylaws do limit their groups?

La Raza limited it to people of Hispanic descent, and the Lawyers Guild to people who adopt its -- its beliefs.

What are we going to do with this selective application argument?

Mr. Garre: This case wasn't--

Justice Sonia Sotomayor: It's in the case, isn't it?

And if it is, what does it do to your policy?

Mr. Garre: --Justice Sotomayor, this case wasn't litigated as a pretext case.

If you look at the briefs in this case, the first time that the word "pretext" is used is in the reply brief in this Court.

It was litigated as a challenge, which is a serious challenge, to the constitutionality of an all-comers policy in this particular forum.

Justice Antonin Scalia: The -- the two are connected, though, Mr. Garre.

Frankly, one reason why I am inclined to think this is pretextual is that it is so weird to require the -- the campus Republican Club to admit Democrats, not just to membership, but to officership.

To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right?

That's crazy.

[Laughter]

Mr. Garre: But--

Justice Antonin Scalia: And is there any other university in the country that has this kind of a policy?

Mr. Garre: --There absolutely is, Justice Scalia, and it's explained--

Justice Antonin Scalia: Where is that?

Mr. Garre: --It's explained in the amicus brief for the American Council of Education, explained in the State Universities amicus brief.

Justice Anthony Kennedy: Well, there are very few universities.

But why doesn't this just all work out?

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.

What -- doesn't this all just work out?

Mr. Garre: Justice Kennedy--

Justice Anthony Kennedy: And doesn't it work out that the Democrats -- they don't want to go in the Republican club and run for officership anyway.

Mr. Garre: --Hastings--

Justice Anthony Kennedy: So why -- what's -- what interest does this -- does the school have in this policing mechanism that it's imposing?

Mr. Garre: --A few -- a number of things, Justice Kennedy.

The first is the line-drawing issue that has been made clear during the first part of the argument this morning.

If you're going -- they appear to take off the table race and what they say are other status considerations.

I'm not sure why that excludes sexual orientation.

But if you're 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--

Justice Samuel Alito: But you now say--

Mr. Garre: --for all school-subsidized groups.

Justice Samuel Alito: --You now say in your brief that it is okay for a group to impose membership requirements that are neutral and not based on beliefs.

Isn't that right?

Mr. Garre: That doesn't go to status or belief.

If you're talking about attendance requirements or competition--

Chief Justice John G. Roberts: No, you're talking about--

Mr. Garre: --those are merits-based requirements.

Chief Justice John G. Roberts: --La Raza background.

As I understand it, the La Raza organization says you have to be of La Raza background to be a policy member of the organization.

Mr. Garre: The La Raza bylaws -- first of all, they did explicitly say that groups could not exclude members on the basis of sexual orientation.

Now, they -- there was some confusion about how La Raza had interpreted their bylaws.

The school went back to La Raza and said: Are you excluding members?

La Raza said: No, we're not; we're open to all.

And to eliminate any doubt, they amended their bylaws.

That's the one example they've come up in the 20-year history of this policy.

And what does it show?

If you want to look at--

Justice Antonin Scalia: Wait, wait, wait.

Twenty years?

Do you have any evidence that this policy, the one we're arguing about now, that is to say, the all-comers policy, existed before CLS brought this litigation?

As I recall, the only evidence in the record is a letter from the dean describing this policy after the litigation began.

Mr. Garre: --Justice Scalia, it's based on the sworn deposition testimony on the former dean, who had been at the school since 1993, the director of student services, who had been there at least since 1999, as this is how they had implemented the nondiscrimination policy.

I don't think there's any basis for this Court to overturn that sworn testimony.

Justice Stephen G. Breyer: What we have is a rule, a stipulation.

And as I read it, to try to make sense out of it, it does seem to discriminate against organizations in respect to which intellectual purity would be important.

They're going to have a harder time.

The ones that don't care that much will have an easier time.

Now, in trying to judge the constitutionality of that, I first have no idea which these organizations are.

We've got one of them, but there may be a lot of others.

I don't know if the Democratic Club is or is not.

I don't know how big the tent they want.

I don't know whether the Turkish Society even exists.

I don't know how the chess club feels about players of tiddlywinks.

[Laughter]

So I have an absolute void in this record, which in turn I think would be important to fill that void, because their justification--

Mr. Garre: Well--

Justice Stephen G. Breyer: --is they don't want to get into this, it's too complicated, and we're not doing that much harm to them because they can meet off-campus, and it's a big, disruptive influence, all of these things.

And then sneaking in here is this anti-gay bias issue, and -- and they want to say: That isn't much, because that isn't really the point here, and that's what we think, anyway.

It's just an example of something.

So with that great unclarity, asked to decide a constitutional issue where I feel I'd need more facts and I don't have them--

Mr. Garre: --Well, you--

Justice Stephen G. Breyer: --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're now talking about for the first time before this Court.

Now, I think it is common ground that--

Justice Ruth Bader Ginsburg: But you -- Mr. Garre, you did say that the evidence is the dean's deposition.

There's no prior evidence.

But there are schools, including law schools, that have this policy.

Is that not so?

Mr. Garre: --That's true.

Georgetown Law School does.

Columbia Law School.

Look, there's an amicus brief filed by 13 educational organizations representing thousands of colleges and universities across the country, including the Association of Jesuit Colleges and Universities, saying that this is a not-uncommon and a reasonable policy.

We're not saying it's the only approach that colleges can take in balancing the competing interests here.

Justice Samuel Alito: Well, let's explore--

Mr. Garre: We're saying it's a constitutional--

Justice Samuel Alito: --Let's explore the implications of this policy.

Suppose at a particular campus there is a great deal of anti-Muslim animus.

And there's a small Muslim group; it has 10 students.

If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?

Mr. Garre: --Justice Alito, that's the claim, obviously, that the other side is making.

And, with respect, this example has never happened at Hastings in 20 years.

It has really never happened in the history of American education.

If you look at cases like the voter I.D. case, the partial-birth abortion case--

Chief Justice John G. Roberts: So if you have a law that says every newspaper that's published in the United States must be reviewed every day by the government's censor board, and the fact that the government's censor board decides not to do it, then that law is okay?

Mr. Garre: --I think this Court would ordinarily take into account the likelihood that something would happen, and if you're dealing where the only experience--

Chief Justice John G. Roberts: A newspaper sues saying that law is constitutional, and we'll say it's all right; it has never been applied?

Mr. Garre: --Of course this Court is going to examine the chill, but so -- just like in the voter I.D. case, where you had had people saying this was going to and, on secondhand accounts, did exclude people from getting to the -- ballot access.

This Court said, look, that might happen, but it's not a basis to invalidate this law across the board.

Come back with an as-applied challenge.

Chief Justice John G. Roberts: That was because they might adopt a different policy.

We're not dealing with a future different policy in this case.

Mr. Garre: And there's -- as to the takeover hypothetical, there is no evidence that it has happened.

Groups can take measures to prevent it.

They can require attendance requirements before people become members.

They can instruct into their bylaws--

Chief Justice John G. Roberts: That's not going to help if you have the 50 anti-Muslim students who want to take over the group.

Mr. Garre: --People have to be -- attend a certain number of meetings before they can join.

They can have--

Chief Justice John G. Roberts: Okay.

They take over the group and the first thing they do is say we're abolishing the attendance policy.

[Laughter]

Mr. Garre: --They can have in their -- they can -- sure.

I mean, we can entertain the hypotheticals.

But they can have in their bylaws a provision just like the Constitution of the United States, that amendments can only be made by a super-majority--

Justice Samuel Alito: Well, CLS obviously thinks this is a real threat.

Now, what do you propose that they do?

Suppose that you win this case, and then when the case -- and then when this all-applicants policy is administered, then precisely what they fear begins to take place.

Do they have any recourse?

Mr. Garre: --I think if that started to take place, the college would reconsider its policy.

It could bring a First Amendment challenge saying that--

Justice Samuel Alito: No, do they have any--

Mr. Garre: --that would--

Justice Samuel Alito: --Do they have any recourse?

Mr. Garre: --I think at that point--

Justice Samuel Alito: If they have 10 members, and 8 who are completely hostile to the organization sign up?

Mr. Garre: --I think obviously the members would rejoin and form another group, Your Honor.

I mean, we're not dealing with this in a factual vacuum.

CLS's predecessor existed at the schools for 10 years and in--

Justice Samuel Alito: I understand the answer to that question.

So, if -- if hostile members take over CLS, the former members of CLS can form CLS II?

[Laughter]

Mr. Garre: --If that happened Your Honor.

I mean, this has never happened ever in -- in the history of--

Justice Ruth Bader Ginsburg: It's also the--

Mr. Garre: --education.

Justice Ruth Bader Ginsburg: --the university's across-the-board rules for all student conduct against disruption, against incivility.

The list would certainly carry over.

Mr. Garre: Absolutely.

And CLS, like any group, can have a rule that disruptive members should be expelled.

Chief Justice John G. Roberts: I'm sorry.

I don't understand your--

Justice Anthony Kennedy: It's also never happened from, what I can tell, that someone who disagrees with this group has applied for membership.

Mr. Garre: Well, Your Honor, the record does show that--

Justice Anthony Kennedy: I mean, that's -- that's what so puzzling about the -- the case.

Mr. Garre: --The record does show, Your Honor, that there was a gay student who was a member of the group.

And that's -- let me give you that--

Justice Ruth Bader Ginsburg: That was the predecessor group.

Justice Anthony Kennedy: The predecessor group--

Mr. Garre: --That was the predecessor group.

Justice Anthony Kennedy: --and obviously uncomfortable with their position, so he or she left.

Mr. Garre: Well, actually--

Justice Anthony Kennedy: That's the way it works.

Mr. Garre: --what the record shows is that she participated in discussions that the officer of the group said it was a joy to have her and that both sides learned.

I think CLS's position depends on the dark notion that students would not have any interest in joining a group with different viewpoints on certain issues except to disrupt that group.

And I think that greatly undersells the intellectual curiosity of students.

It greatly undersells the fact that groups have many different interests and perspectives.

The church has a stance in homosexuality, but it has stances on many other issues, too.

And if a student -- even if he or she disagrees with the stance on homosexuality, they may agree with many other aspects of the groups, and they may want to join in the fellowship of that group, they want to take advantage of intangible benefits like not--

Justice Antonin Scalia: Teach Bible classes?

Right?

Mr. Garre: --Your Honor--

Justice Antonin Scalia: You have to let them teach Bible classes, too, right?

Mr. Garre: --In fact, the record in the -- case shows that only officers teach Bible classes, and groups are perfectly free to structure their organization like that.

They can have requirements that people attend certain meetings before they do that.

CLS isn't forced to have anyone lead Bible classes.

Justice Samuel Alito: If an orthodox--

Mr. Garre: CLS--

Justice Samuel Alito: --If an orthodox Jewish group or a Muslim group applied for recognition and the group said part of our beliefs is -- one of our beliefs is that men and women should sit separately at religious services, would Hastings deny registration to that group?

Mr. Garre: --If it was excluding students from that group on the basis of their beliefs or their status, then, yes, it would.

Hastings isn't in the business of second-guessing the -- the beliefs of -- of individual groups, and the whole point of the policy really is to stay out of this, to just have a blanket rule that's equally neutral.

Justice Samuel Alito: We have -- we have two amicus briefs from orthodox Jewish groups and a brief from a Muslim group.

So, your answer is that they could not be recognized under Hastings' policy because of their religious beliefs regarding the way religious services should be conducted?

Mr. Garre: Your Honor, I think even my friend recognizes that a group could not exclude an individual on the basis of their gender or their beliefs -- on the basis of their gender or race.

And remember the Bob Jones case, this Court--

Chief Justice John G. Roberts: --Well, but that's because gender or race is fundamentally different from religious belief.

Gender and race is a status.

Religious belief -- it has to be based on the fundamental notion that we are not open to everybody.

We have beliefs, you have to subscribe to them.

And we've always regarded that as a good thing.

That type of exclusion is supported in -- in the Constitution.

The other types of exclusion are not.

Mr. Garre: --But not at all costs, Mr. Chief Justice.

In the Bob Jones case, the claim was from a -- a small private religious school that has a sincere religious belief that people who believed in interracial dating should not become members of their school.

And this Court, nevertheless, held that that belief, sincere as it was, did not trump a statute that denied education -- denied Federal financial assistance on a viewpoint-neutral basis to schools that discriminated on the basis of religion.

Here we have a -- a group that wants to exclude members on the basis of sexual orientation.

We can -- CLS has tried to change that part--

Chief Justice John G. Roberts: You phrase it that way.

It's a group that wants to exclude -- a religious group, a religious-oriented group, that wants to exclude people who do not subscribe to their religious beliefs.

Mr. Garre: --They -- there is a binding judicial admission.

And, again, this gets back to the Bob Jones example.

I think--

Justice Antonin Scalia: Where -- yes, let's get back to this homosexual orientation.

You say that that's established in the case.

Mr. Garre: --Look at page -- J.A. page 460, which is where the district court said that CLS made a binding judicial admission that they wanted to discriminate on the basis of sexual orientation.

Keep in mind that this case began because CLS came back to the law school and said we're happy to say we won't discriminate on some grounds, but we're not going to say we won't exclude students on the basis of sexual orientation.

Justice Stephen G. Breyer: What's supposed to happen?

I don't know the answer to this.

Hastings, let's say, or Berkeley has four or five or six different religious chapels for services on Sunday or Saturday, and they say we're open to all branches of religion, orthodox Jews, conservative, and reformed.

And then the orthodox say we want men and women to sit separately.

Now, can Hastings say or Berkeley, no, we'll let the reform come, we'll let the conservatives come, but not the -- not the orthodox Jews.

They can't have their service.

Would -- would that be constitutional?

Mr. Garre: Your Honor, I think it would be a much different case.

It--

Justice Stephen G. Breyer: Yes, but what is your opinion?

Mr. Garre: --I -- I think if the school is regulating outside of the purposes of a limited forum, public forum for recognized groups, then I doubt it could go in--

Justice Stephen G. Breyer: So if, in fact, the -- the--

Mr. Garre: --and tell the groups--

Justice Stephen G. Breyer: --they have clubs and they're not services, and what they do is they discuss -- they discuss the -- the nature of the service, and there can they have separate discussions--

Mr. Garre: --Where -- where--

Justice Stephen G. Breyer: --men from -- men and women?

Mr. Garre: --Where the rule operates on a viewpoint-neutral basis.

Here what the -- the school is doing is it is publicly subsidizing--

Justice Stephen G. Breyer: I guess your answer to that is the orthodox Jews cannot.

They cannot have separate women's groups in their organization, which is an after religious school organization.

Mr. Garre: --They can exist separately.

At the school we have are numerous--

Justice Stephen G. Breyer: Outside of the university, et cetera.

Mr. Garre: --In fact, Your Honor, it's not -- it's not--

Justice Stephen G. Breyer: Well, that's their problem here.

Mr. Garre: --unusual for schools to have all male or all women clubs.

They are not recognized parts of the community.

These -- these are activities that are subsidized by the students themselves through the mandatory student activities fees.

Justice Stephen G. Breyer: And their reason to put in a sentence as to why they don't want these orthodox Jews to meet separately on the campus -- men in one group, women in another -- and discuss the religious service -- they want none like that, and their reason for wanting none like that is?

Mr. Garre: Well, I think that's a much different example than this case--

Justice Stephen G. Breyer: Well, I'm trying to make it as close as possible.

Mr. Garre: --Well, I -- I may have misunderstood the hypothetical.

I mean, I think it's a much different--

Justice Stephen G. Breyer: They have a small orthodox club.

Mr. Garre: --The reason why the school has a policy that all groups that it subsidizes must admit all-comers is that, number one, it ensures that all students enjoy equal access to all school-subsidized and school-recognized activities.

Number two, it avoids the line-drawing problems that we've discussed early this morning and I think are necessarily going to arise and also create strife in small educational communities.

Number three, it allows--

Justice Antonin Scalia: Can I ask about number 2, the -- the so-called line-drawing problem?

Aren't you just letting yourself into even more line-drawing problems?

Mr. Garre: --Not with the all-comers rule.

Justice Antonin Scalia: I mean, the other -- it's whether you were discriminating on the basis of one of the forbidden bases.

But now you're saying you can't discriminate on any basis, which means there're going to be even more lines to have to draw.

Why does it solve your problem?

Mr. Garre: I don't think it -- that happens at all, Justice Scalia.

I think when you've the policy that all students have to become members, regardless of their status or belief, that gets the school out of the business of determining whether, number one, people are discriminating on the basis of an essential belief, which is, is the way that Petitioner describes his -- their rule.

Justice Samuel Alito: As I understood the position, your latest position in your brief, you really don't say you have an all-comers policy.

There are certain criteria that can be applied, like interest, knowledge; is that correct?

Mr. Garre: Competitive-based, merit-based requirements are not excluded.

It -- they're not--

Justice Samuel Alito: Could a -- well, could a group, consistent with your revised all-comers policy, require that members who want -- anyone who wants to become a member show a particular level of knowledge about the subject of the group?

Mr. Garre: --Yes.

And I think--

Justice Samuel Alito: So if the CLS required anybody who wanted to become a member to pass a test on the Bible, that would be okay?

Mr. Garre: --If it were truly an objective knowledge test, it would be okay.

It would be no different than the law review.

These are merits-based determinations.

There's a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit.

That -- that, I think, is a long-standing understanding of discrimination.

Chief Justice John G. Roberts: Well, that -- that -- that's pretty tough.

That has no connection to merit.

I assume there are groups that think subscribing to their beliefs is evidence of merit, particularly religious groups.

So, how can you have a -- a test that allows distinctions based on merit but not -- not beliefs?

Mr. Garre: I think it goes to the nature of whether it's discrimination under the school's policy, and I think status or belief.

People understand -- that's why we are talking about things like race or gender or sexual orientation, disability, military status, any number of these things.

And I think the school's policy avoids having to draw lines as to whether or not a group has a sufficient enough belief that military members should become a member of the Amnesty International club because they disagree with the war, that disabled members should be -- disabled students should be a member of a particular group.

And the school's policy avoids these line-drawing--

Justice Samuel Alito: If the school adopt an all-comers policy--

Justice John Paul Stevens: May I ask this question, Mr. Garre?

Justice Samuel Alito: --for the purpose--

Justice John Paul Stevens: May I ask one question?

I'd like you to answer, and I'd like your opponent, too: Do you think that, in order to decide this case, we have to pass on the constitutionality of an all-comers policy?

Mr. Garre: --Yes, that's the policy before this Court.

Justice John Paul Stevens: That we must do that to decide the case?

And I want to ask your opponent the same question.

Mr. Garre: I believe you have to do that, because that is the policy--

Justice John Paul Stevens: So they're all--

Mr. Garre: --before this Court.

Justice John Paul Stevens: --There may be a lot of other things we can decide, but in all events, we must decide that much?

Mr. Garre: Absolutely.

Absolutely.

If I could just discuss briefly the--

Justice Samuel Alito: --Well, could I just ask one quick question relating to that?

If -- if an all-comers policy is adopted for the purpose of discriminating on the basis of viewpoint, does it violate the First Amendment?

Mr. Garre: --If it's pretextual in the Church of Lukumi Babalu Aye sense, yes.

No -- no school can purposely discriminate at a group, no matter what policy it adopts.

Justice Anthony Kennedy: And what if we think that the policy has not been evenhandedly applied?

Can't we decide the case on that basis, and then we could just assume arguendo Justice -- the answer to Justice Stevens' question.

Mr. Garre: I don't think so, Justice -- Justice Kennedy, because that--

Justice Ruth Bader Ginsburg: Is -- was there any proof in this record?

I mean, there's a stipulation for summary judgment.

Was there any proof showing that it wasn't evenly applied?

Mr. Garre: --No.

And I get back to the petition for certiorari.

On page 2 of the petition, the petition--

Justice Anthony Kennedy: Let me just say, suppose it were shown that it were not applied evenhandedly, you'd have no problem with our saying that it's then unconstitutional.

Mr. Garre: --It -- yes.

We don't think that that's the case here.

But if a policy is applied evenhandedly -- unevenhandedly, in a viewpoint-neutral way and it burdens religious groups, then there's common ground that that policy violates the Constitution.

Of course, we think the policy here is--

Justice Samuel Alito: If this were an employment case, and when an employee is denied promotion the employee said it's for reason A, and then after litigation begins the employer says, well, no, it really wasn't for reason A, it was for reason B because of a policy that we've long had, but there's never -- there's no written documentation of this new policy; and then at a later point in the litigation the employer says, well, it wasn't really either for reason A or reason B; it was for reason C -- do you think that summary judgment could be granted in favor of the employer on the issue of pretext?

Mr. Garre: --I think that that would create a factual issue and that that issue might well be tried, Justice Alito.

And the one thing that is important to keep in mind is that this is a request for injunctive relief and not damages.

So the only policy that matters -- and Wilkinson v. Austin makes this clear -- is the current policy; all parties agree that the current policy is the all-comers policy.

That's the policy supported by the record in this case.

Chief Justice John G. Roberts: Well, I'm sorry.

All parties do not agree that the policy is the all-comers policy.

Your friend argued repeatedly that the policy was the written nondiscrimination policy.

Mr. Garre: I understood my friend's opening brief to acknowledge at the least that that's the policy the school has said it has today.

It is the school's policy.

It's supported by substantial history and sworn deposition testimony.

Justice Ruth Bader Ginsburg: Mr. Garre, the -- the so-called written policy, that has a -- that list has a correspondence to the State's law, doesn't it?

Mr. Garre: It does.

Justice Ruth Bader Ginsburg: The categories that are listed there are the categories that under California law are proscribed bases for discrimination?

Mr. Garre: It does.

And that is an additional basis for the school's policy.

Look at California Education Code 66270.

It explicitly prohibits discrimination in -- in programs and educational activities by public schools like Hastings.

Hastings has an obligation under State law to prohibit discrimination on the basis of sexual orientation.

The reason why we're here today is because CLS insisted on the right to discriminate, to exclude students on the basis of their sexual orientation.

Justice Samuel Alito: Well, section 66270 applies to programs conducted by a post-secondary educational institution, and your position is that if -- if a religious group complies with your policies and then it conducts religious services, those religious services are conducted by Hastings?

Mr. Garre: Our position is that the registered student organization program is a program of the university; it's subsidized by the university; it's recognized by the university; and that all students should be able to enjoy access to that program.

Chief Justice John G. Roberts: In your response to Justice Ginsburg concerning California law, is it your position that California law requires religious groups to admit people who do not believe in their religious beliefs and in fact to conduct services of that group?

Mr. Garre: Your Honor, our position is that the provision that we've cited to, 66270, does not carve out an exemption in this program for a religious student organization.

On its face--

Chief Justice John G. Roberts: So the answer to my question is "yes"?

Mr. Garre: --Yes.

On its face, it excludes -- it has an exemption for religious schools; it does not include an exemption for religious organizations within the context of this program.

And we think that the program is reasonable.

Chief Justice John G. Roberts: Thank you, Mr. Garre.

Mr. Garre: Thank you very much.

Chief Justice John G. Roberts: Mr. McConnell, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL W. McCONNELL ON BEHALF OF THE PETITIONER

Mr. McConnell: Well, thank you, Mr. Chief Justice.

First, in answer to Justice Stevens' question, we do believe that the Court needs to reach the constitutionality of the all-comers policy as applied to CLS in this case.

We brought only an as-applied challenge.

Justice John Paul Stevens: Put -- put to a side a moment -- forget the as-applied.

Just take a -- a pure all-comers policy.

Must we decide the constitutionality of that?

Mr. McConnell: Not facially, but as applied to CLS, yes.

Several other points, I know--

Justice Antonin Scalia: Could you talk about -- I had understood from your brief that CLS did not have a -- a policy of excluding people with homosexual disposition, but that it was only homosexual conduct.

Mr. McConnell: --That's correct as stipulated to, undisputed.

Justice Antonin Scalia: Well, you -- but your complaint said otherwise.

Your -- your--

Mr. McConnell: That's -- that's because we -- the complaint is accepting the -- Hastings' definition of sexual orientation.

We were told that our conduct rule, our nonmarital conduct rule, violated their sexual orientation provision, and therefore we sought relief from their sexual orientation provision.

It was nothing more than that.

There -- it is -- it is stipulated in Joint Stipulation 40, I believe it is, that -- that CLS's rule is based on conduct--

Justice Antonin Scalia: --Oh, okay.

Mr. McConnell: --not orientation.

Several other points: My friend twice in his presentation stated that the all-comers policy is simply their way of implementing the nondiscrimination policy.

But if so, it is so absurdly overbroad as to be unconstitutional.

There is no reason to stop the environmentalist club from leading -- from requiring its leaders to share environmentalist views--

Justice Ruth Bader Ginsburg: Mr. McConnell--

Mr. McConnell: --in order to--

Justice Ruth Bader Ginsburg: --Mr. McConnell, you don't challenge that there are universities, including four law schools, that have an all-comers policy?

Mr. McConnell: --So far as we've been able to tell, there is no public university law school in the country that has such a policy.

Justice Ruth Bader Ginsburg: There are private universities.

Mr. McConnell: There are some private universities that, according to the AALS, have such a policy.

We know nothing about them.

They are not in the record, and, frankly, I'd be a little bit surprised, because the policy is so absurd.

Think of how it would apply to the law school itself, and this policy does apply to the law school itself.

Does Hastings really mean to say it is committing itself to an all-comers policy when it hires faculty or admits students?

Do they not care about the belief of its dean of admissions, about beliefs of -- about, say, affirmative action?

The very idea of it is preposterous.

Justice Stephen G. Breyer: It's not totally, if -- but it's imaginary, it's fantastical.

The -- you could imagine a school in the '60s that said that we think the way to advance learning is everyone gets together in a nice discussion group and hugs each other and talks, all right?

[Laughter]

Now, that's a possible educational theory.

Mr. McConnell: It's possible, but--

Justice Stephen G. Breyer: They say that we are going to apply that to everybody because that's how we do it.

And--

Mr. McConnell: --Yes, but Hastings has--

Justice Stephen G. Breyer: --if there are any ideological organizations that suffer--

Mr. McConnell: --But Hastings has--

Justice Stephen G. Breyer: --so be it, but it's fantastical, and therefore--

Mr. McConnell: --Hastings has a perfectly conventional RSO program just like the ones in Healy, and Widmar and Rosenberger.

They just have a policy that is destructive of that--

Justice Stephen G. Breyer: --Well, my--

Mr. McConnell: --of that program.

Justice Stephen G. Breyer: --my question is, if I can think of this policy -- but I tend to sympathize with your view that it's so hard to believe that they really hold it, maybe they do, I don't know about it -- what do I do with this case?

How can I say whether this, let's call it "hug your neighbor policy" is -- to put a label on it that's catchy--

Mr. McConnell: What can--

Justice Stephen G. Breyer: --how do I -- how do I evaluate that?

Mr. McConnell: --What you can say is that Healy v. James requires a substantial justification for exclusion of a student group from a registered student activity forum, and this is not a substantial justification; it is a silly justification.

If it is silly, crazy, and preposterous, it is not even reasonable, let alone compelling or substantial.

Chief Justice John G. Roberts: Thank you, Mr. McConnell.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts Jr.: In case 08-1371 Christian Legal Society versus Martinez.

Justice Ginsburg has the opinion of the Court.

Justice Ruth Bader Ginsburg: This case presents a novel First Amendment question, may a public law school condition official recognition of a student group, on the group’s agreement to open membership to all students, who want to join.

We hold that a law school may maintain such an open access policy to meet First Amendment measurement the school need not provide a religion based exception.

Respondent Hastings College of Law is a state operated law school, part of the University of California system.

Hastings extends official recognition to student groups through its “Registered Student Organization” or RSO program.

Several benefits attend RSO status, prime advantages of RSO qualification in addition to access to school facilities and methods of communicating with students.

There are subsidies for the organizations events.

This funding comes from mandatory, student activities fees, imposed without exception, on all students.

To gain recognition, RSO’s must agree to comply with Hastings Nondiscrimination Policy, that policy tracking California Law, bars discrimination on several bases including religion and sexual orientation.

Hastings interprets the policy to require RSO’s to accept all-comers.

For example, as the parties have stipulated to be true, a Democratic group cannot exclude students holding Republican political police.

Hastings policy is not unique, other law schools, for example, Georgetown University Law Center adhere to similar all-comers policies.

At the beginning of the 2004 academic year, petitioner Christian Legal Society or CLS sought to become an RSO at Hastings.

CLS accepts as members only students who share the society’s religious beliefs and views about sexual conduct.

Because CLS does not welcome all-comers, Hastings refused to grant it, RSO status but allowed the society to engage in expressive activities on campus using CLS’s own resources.

CLS filed suit contending that the First Amendment required Hastings to accept the society as an RSO.

The District Court affirmed by the Court of Appeals granted summary judgment to Hastings.

We affirm the Ninth Circuit's judgment relying on the party’s stipulation of the undisputed facts we hold that Hastings all-comers policy does not unconstitutionally inhibit CLS’s freedom of speech or expression.

CLS asked us not to focus on Hastings’s all-comers policy but on the school's written Nondiscrimination Policy.

We decline to do so, CLS stipulated in no uncertain terms that Hastings embracive all-comers policy governs RSO’s because CLS is bound by that stipulation we consider only whether the all-comers policy complies with the Constitution.

This Court's decisions regarding limited public-forums provides the framework for our analysis.

A state creates such a forum when it confines use of its resources to certain groups.

State regulation of speech in a limited public forum must meet two conditions; it must be both reasonable in light of the forum’s purposes and viewpoint neutral.

Hastings’s all-comers policy we are satisfied meets these criteria.

First, the policy ensures that the educational and social opportunities afforded by RSOs are accessible to all students.

RSOs as I just noted, are eligible for financial assistance drawn from mandatory student activity fees.

The policy ensures that no Hastings student is forced to fund a group that would reject her as a member.

Second, the policy enables Hastings to police compliance with the written terms of its Nondiscrimination Policy, without inquiring into an RSO’s motivation for membership decisions.

Third, the policy to the extent that it brings together individuals with diverse beliefs, encourages tolerance, cooperation and learning amongst students.

Fourth, the policy incorporates and advances the state-law antidiscrimination prescriptions.

Hastings’s policy is all the more creditworthy given the alternative channels open to CLS communication with students.

Hastings offered CLS access to school facilities to conduct meetings and to advertise its events.

CLS, in fact hosted a variety of activities the year after Hastings denied it recognition.

Attendants at CLS events that year far from dwindling notably increased.

As to viewpoint neutrality, it is hard to imagine a more viewpoint neutral policy than one requiring all student groups to accept all-comers.

CLS ultimately contends that the all-comers policy is pretextual and selectively applied but the Courts below did not address CLS’s pretext claim and this Court is not a proper place to air the issue in the first instance.

On remand, the Ninth Circuit may take up CLS’s pretext argument, if and to the extent that the argument was properly preserved.

Finally, and of overarching importance, in mounting this lawsuit, CLS seeks not parity with other organizations but preferential exemption from Hastings’s all-comers policy.

The First Amendment shields CLS against state prohibition of its expressive activity, exclusionary as that activity may be but CLS, we hold enjoys no constitutional right to state support of its selectivity.

Justice Stevens and Kennedy have filed concurring opinions.

Justice Alito has filed a dissenting opinion in which the Chief Justice and Justices Scalia and Thomas join.