On Thursday, Campus Pride and CampusSpeak presented an exclusive webinar on the U.S. Supreme Court's decision in Christian Legal Society v. Martinez. The document below, written by Shannon P. Minter, legal director for the National Center for Lesbian Rights, and Christopher Stoll, senior staff attorney, explains what the decision means for university student groups and policies governing them.

In Christian Legal Society v. Martinez, the Supreme Court of the United States upheld the University of California Hastings College of the Law’s “all comers” nondiscrimination policy, which requires registered student organizations to open their membership to all students, regardless of a student’s status or beliefs, rejecting a First Amendment challenge to the policy. For university counsel and administrators considering implementing or revising a nondiscrimination policy that is applicable to registered student organizations, several lessons can be drawn from the Court’s decision.

• An “all comers” policy is clearly permissible and constitutional. The Supreme Court’s decision clearly establishes that a public university may enforce a nondiscrimination policy that requires all officially-recognized student organizations to allow any interested student to become a member and to be eligible for leadership positions regardless of their status or beliefs. Such a policy would mean, for example, that an African-American student organization must accept members who are not African-American, a College Democrats chapter must accept Republican students as members, and a Christian student group must accept non-Christians and openly lesbian, gay, bisexual, and transgender students as members. Under this type of policy, student groups that wish to limit their membership based on status or belief cannot be registered student organizations and are not eligible for funding and other school resources; they are treated like other unofficial student groups and are subject to the rules and policies that apply to such unofficial groups.

• An “all comers” policy may be applied to eligibility for leadership positions as well as general voting membership. The Supreme Court upheld Hastings’ requirement that registered student organizations not only must admit all interested students as full voting members, but also must permit all interested students to be eligible to become officers or leaders of the organization. Under the policy upheld by the Supreme Court, student groups may choose any method they wish of selecting officers, but groups must allow any interested student to run for office without regard to his or her status or belief.

• Under an “all comers” policy, student groups can have merit-based eligibility requirements. The Supreme Court upheld Hastings’ “all comers” policy even though some groups, such as honor societies and student journals, imposed grade point average requirements or selected members on the basis of a writing competition. Even under an “all comers” policy, a university may permit student groups to impose objective, merit-based membership requirements. The Supreme Court recognized that merit-based requirements are different than excluding students based on the student’s status or beliefs.

• Category-based nondiscrimination policies are also likely permissible and constitutional, so long as they are enforced even-handedly. The Supreme Court did not directly consider whether a school could have a nondiscrimination policy that prohibits student groups from discriminating against certain categories of people (for example, race, sex, religion, sexual orientation or gender identity). However, the Court’s analysis of the “all comers” policy in CLS v. Martinez strongly suggests that this kind of category-based nondiscrimination policy is likely also permissible and raises no constitutional problem. In fact, Justice Stevens’ concurring opinion stressed that a non-discrimination policy based on categories would be constitutional for the same reasons that an all-comers policy is constitutional.

• Rules barring students who engage in same-sex intimacy or any sexual intimacy outside of a heterosexual marriage discriminate based on sexual orientation. In the Supreme Court, the Christian Legal Society argued that it was not discriminating based on sexual orientation, but instead was merely imposing a “moral conduct” requirement that required all its members to refrain from all sexual activity outside of a traditional marriage between different-sex spouses. The Supreme Court rejected CLS’s argument and ruled that imposing such a conduct requirement is discrimination on the basis of sexual orientation. The effect of this ruling is that universities may prohibit registered student groups from imposing moral codes or other “conduct” requirements on their members that have the purpose or effect of discriminating against lesbian, gay, bisexual, or transgender students.

• University nondiscrimination policies must be enforced in an even-handed manner that does not single out particular groups for differential treatment. The Supreme Court held that selective enforcement of a university nondiscrimination policy against some student groups but not others may violate the First Amendment. For example, if the university prohibited a Christian student group from excluding non-Christians from membership, but permitted a Muslim student group to exclude non-Muslims, the Christian group may have a valid claim that its First Amendment rights were violated.

For more information about the case or its implications for university student group policies, contact NCLR at: www.nclrights.org or info@nclrights.org.

This week, the U.S. Supreme Court ruled 5-4 in a case pitting UC Hastings School of Law against a Christian student group.

The school had denied recognition to the Christian Legal Society, which then challenged its anti-bias policies prohibiting discrimination on the basis of religion or sexual orientation. The Christian Legal Society requires its voting members and officers to sign a "Statement of Faith" and abstain from all sex outside of heterosexual marriage.

On June 28, the Supreme Court upheld the Ninth Circuit Court of Appeals' decision for UC Hastings.