That assertion is absurd on its face. That policy would allow Democrats to join the College Republicans and vote that the club should endorse Barack Obama. It would allow an NRA member to join the animal-rights groups and push for expanding hunting rights. It would allow for a supporter of Hamas to join the Jewish student organization, and gives speeches calling for the destruction of Israel.
Beyond that, the school’s nondiscrimination policy applies to every action of the school, including faculty and administrative actions. Does it even need to be pointed out that this policy clearly isn’t real, since an all-comers policy would require the school to hire as a professor anyone who applies, regardless of whether they have a college degree or a felony conviction?
No one with even a remote grasp of reality should believe that this is actually the school’s policy. Yet that’s exactly what the five justices in the majority signed on to.
Not only that, but the school admits that this policy is no longer its policy. The first time the policy was announced was conveniently right after this lawsuit started. Hastings maintained that argument until it was time to go to the Supreme Court, where it changed its argument to now say that it has an accept-some-comers policy, that a group can exclude some people for neutral reasons, such as requiring faculty members to have a college degree (This policy presumably means that you can exclude people for any reason other than their views on sexuality.)
Nonetheless the Court majority, in an opinion written by Justice Ruth Bader Ginsburg, insisted on only considering the all-comers policy because CLS stipulated at the trial level that the all-comers policy is the one at issue.
This, despite the fact that as Justice Sam Alito argued in dissent about this policy (joined by the other conservative justices), “It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010.”
Justice Alito went on to correctly note that Supreme Court precedent holds that any facts stated in the original filing of a lawsuit, if not disputed by the other party, is automatically considered fact for any court considering the case. In the initial filing—called a complaint—CLS correctly described the real nondiscrimination policy.
Therefore the Court should have considered that policy. In doing so, Supreme Court precedent clearly establishes that this policy is viewpoint discrimination, with is always and automatically unconstitutional under the First Amendment. Groups that join together to promote a message or agenda are exercising a form of free speech called the right of expressive association. That is to say, these people join together to express their beliefs. One of the first major cases on expressive association, Healy v. James (where the Court upheld the right of a student group—Students for a Democratic Society—to be recognized on campus despite embracing a radical agenda that sometimes included violence), is directly on point to the CLS case. Under Healy and all the cases the Court has considered over the past 40 years, the policy at Hastings should have been struck down.
Even so, even if the Court were to accept that the all-comers policy is the real policy, it should still have been struck down. It still requires groups to accept students who disagree with CLS’s mission, and as such disrupts the right of CLS to express the views that CLS exists to express and advance.
Any way you look at this case, then, this case was wrongly decided.
As Justice Alito said for the conservative justices in his dissent, “I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country… I can only hope that this decision will turn out to be an aberration.”
Monday was a sad day for religious freedom in the United States, which as the dissent notes, is one of the only countries in the world that respects religious viewpoints even when they are unpopular with parts of the current culture. CLS v. Martinez should be overruled.