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Just the Facts, Ma’am: Procedural Hijinks Defeat Individual Liberties at High Court

In my last post, I described the benefits of the Supreme Court’s opinion in McDonald v. City of Chicago while taking issue with the Court’s adopted mode of analysis.  The Court also released Christian Legal Society v. Hastings College of Law at the end of its term.  While the case had the potential to be a solid victory for supporters of free association and the exercise of religion, something went wrong along the litigation track.

The constitutional question before the Court was limited:  “May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?”  At the heart of the matter was CLS seeking an exemption to the policy because it excluded anyone who engaged in “unrepentant homosexual conduct.”

Though the case’s substance went to the heart of the right of association, procedural problems plagued the litigation. In short, the CLS challengers faced Hastings’ dubious Three-Card Monte tactics. The law school imposed an “all-comers” policy that forbade discrimination by student organizations as to membership.  But the law school had another policy, or series of changing policies, that seemed to single out Christian organizations.  When faced with the demands of litigation, CLS agreed to a common stipulation of facts with the law school.  But in making such a stipulation, CLS failed to target the on-again, off-again policies, ultimately securing defeat for their case before the Supreme Court.

The speech policy that the Christian Legal Society agreed to in its stipulation of facts was the “all-comers” rule.  Such policies are ordinarily deemed content-neutral and valid exercises of a college’s administrative authority.  Once CLS agreed to this stipulation, it sealed its case and could not challenge the more notorious policy that seemed to target and disfavor Christian students.

The dissent, written by Justice Alito, rightly points out the ugly stain of political correctness that seemed to invade Hastings.  Conflicting briefs illustrate the likelihood that different policies did exist and likely discriminated against Christian student organizations.  Based on these findings, the dissent would have ignored the stipulated facts agreed to by CLS and examined the underlying conduct and policies of Hastings more deeply – leading to a finding that Hastings’ policies were unconstitutional.

The salience of Justice Alito’s views here are important, but even more important is the need for lawyers not to fall into the trap of unfounded mutuality when engaged in litigation.  An agreement as to stipulated facts means that reviewing courts will deem them “undisputed” and beyond second-guessing.  What’s more, when CLS petitioned the Supreme Court for review, it continued on this path by noting that the “material facts of this case are undisputed.”  With such a pattern briefed and articulated in the courts, it became impossible for CLS to stand on principle and defeat Hasting’s unconstitutional policies.

Christian Legal Society v. Hastings College of Law goes down as a case that could have secured important protection for Christian organizations against government discrimination.  But hasty stipulations brought the challenge to its knees, encouraging all of us to exercise careful discernment about the company we keep and the compromises we make if they impair us from standing on principle in the future.

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Wednesday, 23 August 2017
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