Christian Legal Society v. Martinez: In Hindsight

Abstract

Before becoming a professor, I helped litigate the Christian Legal Society v. Martinez case. Since the Supreme Court issued its decision, scholars and commentators have labeled the decision “narrow” and “inconsequential.” But these conclusions are mistaken. The Martinez Court’s reasoning anticipates the eventual dismantling of the First Amendment doctrine of equal access. A majority of the Court held that a university’s recognition of student groups is a government subsidy rather than the creation of a speech forum. This shift frees universities to argue that they can pick and choose which student groups to recognize, even if it means picking nonreligious groups over religious groups. These consequences flow, at least in part, from CLS’s stipulation to Hastings’ all-comers policy — a stipulation that made sense only to the extent the Court was willing to view the case as about association rather than equal access. But the Justices unanimously viewed the case through the lens of equal access. Looking back, the Justices’ analysis now seems unsurprising, because: (1) since the late 1950s, the Court has treated expressive association as merely another form of speech; and (2) the lower courts had already treated Martinez-like cases as equal access cases.

Keywords: Christian Legal Society, Martinez, student groups, First Amendment, expressive association, Boy Scouts, Dale, free speech, students, student, university, universities, college, colleges, Tracey