Amending Christian Legal Society v. Martinez: Protecting Expressive Association as an Independent Right in a Limited Public Forum

Abstract:     
With limited acknowledgment of its dramatically different approach to expressive association, the Supreme Court in Christian Legal Society v. Martinez upheld a public university’s policy requiring all student organizations to give voting membership to all interested students, even if a student’s beliefs conflict with the expressive purpose of the organization. In concluding that this "all-comers" policy was both reasonable and viewpoint neutral, the Court analyzed a student organization’s First Amendment expressive association claim using the test for speech restrictions on government property constituting a limited public forum. This article argues that the Court’s merging of protections for speech and expressive association in a limited public forum is inadequate to protect associational rights that lie at the core of the First Amendment. In Part I, I highlight the Supreme Court’s prior expressive association cases, and in Part II, I explore the ways in which Martinez departed from the approach of these cases. Part III argues that the viewpoint neutrality test governing restrictions affecting speech in a limited public forum does not translate well as a means to safeguard associational rights, and proposes new tests for analyzing expressive association in a limited public forum. Finally, Part IV contends that, in a limited public forum, expressive association should protect an organization’s right to select members on the basis of voluntarily selected beliefs or conduct, but not based on immutable characteristics or status. I explore this status/belief distinction and address two opposing yet compelling criticisms of the distinction - that it does not sufficiently protect minority groups from discrimination, and, on the other hand, that it does not sufficiently protect expressive association.

Number of Pages in PDF File: 58

Accepted Paper Series