Word In Action Ministry

Why Is Supreme Court Holding Onto Christian Legal Society Case?

Tony Mauro

The National Law Journal

November 12, 2009

The Supreme Court first considered the petition in the closely watched case of Christian Legal Society v. Martinez at its Sept. 29 closed conference. It did not act then, and according to the Court's online docket, it has re-listed the case for five subsequent conferences, including the conference scheduled for this Friday, Nov. 13 -- an unusually long delay.

The petition challenges a decision of the University of California, Hastings College of the Law to deny official recognition to the Christian student group because it does not conform to the school's requirement that membership and leadership positions be open to all. The Hastings chapter of the society requires members to sign a statement of faith that vows devotion to Jesus Christ and has been interpreted to bar those with a "sexually immoral lifestyle." The 9th U.S. Circuit Court of Appeals, in an unpublished two-sentence ruling in March, said the law school's action was "viewpoint neutral and reasonable."

The society in its petition points out that the 9th Circuit decision is in clear conflict with a 2006 7th Circuit decision involving the same organization, Christian Legal Society v. Walker. In that case, involving the Southern Illinois University School of Law, the court found that the Christian group's ability to convey its message would be hampered if it was forced to accept members who disagree with it. It ruled that the state school had no compelling interest in imposing the policy on the organization.

The society, among others, is mystified at the high court's handling of the case. "We're going for the record books" in the number of conferences at which consideration of the case was put off, said Kim Colby, senior counsel of the Center for Law and Religious Freedom, the society's litigating arm. "But we're happy for them to keep thinking about it, and we remain hopeful."

She said the case deserves review because "there is such a dramatic split" between the circuits on the fundamental issue of whether the society has the "right to choose its own officers."

When the Court puts off cases for this long, it sometimes means that it is ready to deny review, but one or more justices is preparing a dissent from denial of review. It could also mean the Court is awaiting or considering a related case. On Oct. 29, the society informed the high court by letter that a similar case pending before the 11th Circuit had become moot, but that is unlikely to be the cause for the Court's hesitation. The Court's delay also could simply mean that a justice wants more time to consider the case. But a delay from late September to mid-November is unusual. If the Court decides to act on the case Friday, its action would likely be announced Monday.