The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association. The federal district court ruled against CLS. The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku. The decision, in its entirety, states:
The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).
So CLS appealed to the U.S. Supreme Court. The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court. According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September. But no one imagined that by mid-November we would still be waiting for the Supreme Court to act. Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices). A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.
However, the Supreme Court has now delayed deciding what to do with the case for six conferences. This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his law.com blog about what is going on with the case.
The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case. Calling for the record is also an odd and unusual step for the justices to take. What is going on here? Are the justices agonizing over some issue or fact? Are they struggling to reach a consensus on what to do with the case?
For what it’s worth, here is my speculation. We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.
Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy. UC-Hastings has shifted between two positions on what its policy is. At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs. At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members. So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.
The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional. The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals. If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit. But is that the policy UC-Hastings has or not? Maybe that is why the high court has called for the record from the lower courts.
ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus. The Supreme Court does not necessarily need to address that question in the UC-Hastings case.
So, what will happen? Will the Supreme Court grant review and hear oral arguments? Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student? Will it simply deny review after examining the case for weeks? And when will that happen? We simply don’t know, so the speculation mounts. Maybe we will get some clarity from the Supreme Court on Monday, but who knows? Stay tuned.