Amending Christian Legal Society v. Martinez: Protecting Expressive Association as an Independent Right in a Limited Public Forum
Erica Rachel Goldberg
Penn State Law
February 23, 2011
Texas Journal on Civil Liberties and Civil Rights, Vol. 16, No. 2, 2011
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: 58Accepted Paper Series
Date posted: February 24, 2011
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