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Supreme Court on Major Discrimination Case: 'Huh?'

Before the justices can render an opinion in the Christian Legal Society dispute, they'll have to figure out what the facts are.

Headlines today are calling the Supreme Court sharply divided over whether a University of California law school can require its Christian Legal Society chapter to open its leadership to all students, including critics and non-Christians.

But there was sharp agreement, too: At some point during yesterday's oral arguments, nearly every justice wondered aloud what they were supposed to be discussing.

Justice Anthony Kennedy put it most baldly. "What is the case that we have here?" he asked. "It's frustrating for us not to know what kind of case we have in front of us."

Likewise, Justice Sonia Sotomayor admitted, "I'm not quite sure what the record is on these issues. I'm somewhat confused on the factual assumptions underlying this case."

In theory, Christian Legal Society v. Martinez could be a very important case, with both sides worried about discrimination. UC-Hastings wants to ensure that students aren't discriminated against in any campus context on the basis of sexual orientation, religion, gender, race, or handicap. The Christian Legal Society (CLS) chapter says the school's policy that it must open its leadership to those who disagree with its core beliefs is discriminatory.

The stakes can be seen in the prominence of the lawyers in the case: CLS is represented by Michael McConnell, who served on the Tenth Circuit Court of Appeals, now heads the Stanford Constitutional Law Center, and is one of the country's foremost scholars on the religion clauses of the Constitution. (Notably, McConnell played down the religious freedom implications of the dispute in yesterday's proceedings.) UC-Hastings is represented by Gregory Garre, George W. Bush's last U.S. Solicitor General and (according to The National Law Journal's Tony Mauro) protégé of Chief Justice John Roberts.

"There is, of course, a real constitutional issue lurking in the case: how far can a public college go in trying to ensure equality of educational opportunity for all students, before it winds up intruding on the private beliefs of a group that is not completely open to all comers?" Lyle Denniston wrote at ScotusBlog. "That is, as several Justices noted pointedly, an issue of genuine significance, and the Court obviously took the Christian Legal Society case to decide it. But, after wading through hundreds of pages of legal briefs, the Justices did not appear to have come to the bench with a firm idea what was actually at stake."

Among the unresolved questions: How many policies does UC-Hastings really have? How old is the policy/policies? Was CLS singled out? Were other groups (like La Raza, a group for Latino students) told to change their rules on leadership? If so, were they told to do so before or after the CLS lawsuit began? Is CLS's rule against homosexual conduct discrimination based on sexual orientation? Is UC-Hastings particularly concerned about discrimination against sexual orientation, or is it just trying to implement an "all comers" policy in which sexual orientation, religion, personal opinion, favorite food, and other issues are all irrelevant? Is CLS making arguments against facts that they stipulated to early on in court proceedings? Is UC-Hastings?

It's not just the justices who are frustrated. "Every time the policy is mentioned, it seems to morph into something else," McConnell said. "When the dean announced in the depositions, she said all students may participate in all activities, period, full stop. Now we find out in their brief, well, the groups can have conduct limitations, they can require dues, they can have attendance requirements, they can have competitive contests to see whether they get in. This policy changes with every wind."

Garre argued that it is CLS's argument that's evolving, not the college's policy. "This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court," he said.

The conflict over the facts of the case took up so much time in the oral arguments that as McConnell tried to move the conversation back to the constitutional issues, Justice Antonin Scalia harrumphed, "I wish you would [focus on those issues]. You are going to waste your whole time just discussing this stipulation point."

But the justices are likely to spend more time discussing the stipulation point as they prepare to rule. ScotusBlog's Denniston lays out the options for the court: "The first question it may have to resolve is whether the Justices on their own should reconstruct the factual record, make some assumptions about it and call that good enough to reach the constitutional issue, or return the case to a lower court with a command to get it sorted it out before the case moves another step toward final resolution."

Another option, which would constitute a win for UC-Hastings, is for the court not to rule on the constitutional issues and simply say that it shouldn't have granted the case a hearing after all. That might be the position of Justice Steven Breyer, who asked, "So with that great unclarity, asked to decide a constitutional issue where I feel I need more facts and I don't have them … what should I do?"

Such a move would likely be strongly opposed by Justice Samuel Alito, who seemed miffed that the Ninth Circuit Court of Appeals ruled against CLS in a mere two-sentence opinion.

Denniston's analysis of how things stand: "From questions and comments, it appeared that the Justices would line up—at least preliminarily—this way: the Chief Justice and Justices Alito and Antonin Scalia were sympathetic to the Christian Legal Society's challenge, Justice Ruth Bader Ginsburg was sympathetic to the Law School's non-discrimination goal and doubtful about the Society's evidence of bias, Justice Sonia Sotomayor seemed more persuaded by the Law School's argument than the Society's, Justices Kennedy and Breyer were the most uncertain about going forward to a final ruling on the merits, and Justice John Paul Stevens said too little (and Justice Clarence Thomas nothing at all) to give a hint where he might be leaning. Assuming that Stevens and Thomas might take opposite sides, it appeared that either Kennedy or Breyer, or perhaps both, would hold the balance."

In other words: for all the unique opportunity and frustration the case offers, expect another 5-4 decision.

"This is an unbelievably hard case," wrote Slate's Dahlia Lithwick. "But judging from the ideological zeal of today's battle, you'd think the case was open-and-shut. The liberals are for nondiscrimination. The conservatives are certain that liberals plan to infiltrate unpopular Christian groups for nefarious purposes. … Maybe Garre is right, and students will still find a way to associate with people who hold very divergent beliefs and not just because they seek to overwhelm and destroy them. But it's difficult to see how that can happen on college campuses when it's happening less and less often at the Supreme Court."

Indeed, the case mirrors not just the increasing polarization in American society, but the change in how debate and discourse within that context. Like McConnell, Garre, and the justices, we may eagerly want to persuade each other of our opinions and views. But often we never get to that point: We spend all our time arguing about what the facts are, getting frustrated long before we can discuss what the facts mean. Take the recent dispute in Reformed circles over John Piper's speaking invitation to Rick Warren—most of the fight was a factual dispute over what Warren believes or had said, and whether quotes were being lifted out of context. Comment threads on the latest news about the church and homosexuality inevitably devolve into competing factual assertions on whether same-sex attraction is genetic or otherwise inherent—or whether certain Greek words were accurately translated. It's rare to find a development in the evolution debate that is not about one side accusing the other of ignoring and suppressing factual evidence.

To quote Justice Kennedy, "It's frustrating."

Related Elsewhere:

Christianity Today editorialized on the Supreme Court case yesterday.

Other coverage of yesterday's oral arguments is available from the San Francisco Chronicle, The Chronicle of Higher Education, The Washington Post, The New York Times, World, The Washington Times, The Wall Street Journal, and All Things Considered.

CT covers more political developments on the politics blog.

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