I recently filed a friend of the court brief in the U.S. Supreme Court on behalf of the AHA and six other nonprofits. The case – Christian Legal Society v. Martinez – seemingly pits the free speech and association rights of CLS against the right of all students at a public college to participate in officially recognized student groups.

How will the Court balance these interests? I wouldn’t be surprised if the Court split 5-4, but my guess isn’t much better than a flip of the coin.

Here’s an outline of the facts. Hastings College of the Law in San Francisco conditions its recognition of student groups on their agreeing to abide by the law school’s nondiscrimination policy. Up until 2004, CLS had agreed to abide by the policy. Then, to affiliate with the national CLS group, the CLS chapter changed its constitution to require voting members and leaders to subscribe to a Statement of Faith. That statement is interpreted by the student group as requiring it to exclude non-orthodox Christians (including heterodox Christians, atheists and Jews) and gays. As a consequence, Hastings denied CLS “recognized student organization” (“RSO”) status. This is important because RSOs have priority access to meeting spaces and communication channels, and they are eligible to apply for funds from student activity fees and to use the Hastings logo.

CLS argues that Hastings violated its expressive association rights by denying it RSO status on account of its religious viewpoints.

Here’s what I argued in AHA’s brief. First, CLS has the right to determine its own membership under the Supreme Court’s decision in Boy Scouts of America v. Dale (2000) (which held that private groups can exclude anyone they want to). However, CLS doesn’t have the right to be privileged by the state including those privileges I mentioned above that Hastings grants to RSOs.

Second, I argued that under the Supreme Court’s decision in Employment Division v. Smith (1990), Hastings’ nondiscrimination policy is permissible because it is viewpoint neutral and applicable to all student groups. The District Court based its decision in Hastings favor on this basis and the Ninth Circuit U.S. Court of Appeals affirmed for the same reason.

It’s important to note here that the District Court found that because CLS was permitted some access to Hastings facilities, its right of expressive association was not substantially burdened. It is also important to note that Hastings’ nondiscrimination policy targets “conduct” which the school may establish reasonable regulations, and not “speech” (i.e., viewpoints which it may not be censored).

And third, I argued that Hastings has a compelling interest in preventing the discrimination and stigmatization of “outsiders” and that its policy works to achieve this purpose. Simply put, it would be unreasonable to ask students to fund their own discrimination.

Oral arguments are scheduled for April 19 and a decision in the case is expected before the end of June.

I would be interested in hearing your views on the case and my arguments for upholding Hastings’ nondiscrimination policy by commenting on this blog post.

This is a big week for marriage equality in North America. First, same-sex couples can now start applying for marriage licenses in Washington DC:

D.C. Superior Court began accepting marriage license applications from same-sex couples Wednesday morning, a historic milestone for gay couples and activists that was made possible by the city’s new gay marriage law.

About 45 couples with their coffee, newspapers and blackberries — many dressed in blazers and slacks as they planned to go to work after filing an application — were waiting in line when the court’s marriage bureau opened its doors at 8:30 a.m. Employees allowed 10 couples to enter at a time, and had extra personnel on hand to accept the applications.

Licenses take up to three days to process, so early next week will see the first same-sex marriages in the District of Columbia.

This follows a barrage of attempts by opponents to stop the marriage equality law passed by the DC Council in December by any means possible. Local anti-equality activist Bishop Harry Jackson had attempted to take his case all the way to the Supreme Court of the United States after the DC Court of Appeals declined to intervene, arguing that District residents deserved the opportunity to vote on marriage equality before it took effect. His effort failed.

And in Mexico City, a marriage equality law will takes effect today, after being passed in December of last year by the city’s leftist Democratic Revolution Party (PRD)-dominated government.

The Catholic Church has been, predictably, up in arms,
as is the right-wing National Action Party (PAN), the party of Mexico’s president Felipe Calderón::

“The family is under attack,” warned Mexico City Cardinal Norberto Rivera, saying that the “perverse” measure would inflict psychological damage on “innocent children.”

…

“Marriage, as it was originally conceived, as a union between a man and a woman, guarantees the future of the state and of Mexican society,” Mariana Gómez del Campo, PAN’s leader in Mexico City, told a radio interviewer.

But opinion polls on the subject show widespread support among resident’s of Mexico’s capital city:

An opinion poll by El Universal newspaper in November found that 50 percent of Mexico City respondents accepted gay marriage and 38 percent opposed it. Residents ages 18 to 39 were more likely to be supporters.

Marriage equality is moving forward. While neither the United States nor Mexico currently have it on a national level, the symbolism of the national capitals of each nation enacting equality laws in the same week surely will not be lost on the world.