Here are some of my instant reactions to the oral arguments in CLS v. Martinez.

The Court seemed very hung up over the factual record, and in particular stipulations made at the District Court. It seemed that McConnell attempted to distance himself from some of the stipulations and the Justices jumped all over him.

Justice Sotomayor nailed the issue, in my mind at least, on the head. I don’t know if I agree with the school’s policy, but I don’t see anything unconstitutional about it. In the classic words of Justice Scalia, this rule is stupid, but constitutional.

JUSTICE SOTOMAYOR: But this sounds like a debate over whether the policy as the school believes it should be implemented is not a good one. But isn’t that their choice? Don’t we give deference to an educational institution in terms of the choices it makes about affecting its purposes? And the purpose here is we don’t want our students to discriminate.

MR. McCONNELL: There is a stipulation as to what the purpose is, and the purpose is to promote a diversity of viewpoints among registered student organizations.

…

MR. McCONNELL: “Hastings seeks to promote a diversity of viewpoints among registered student organizations.”

And note how destructive an all-comers policy directed on belief is toward — toward that. That means that if, for example, there is an NAACP chapter, it would have to allow a — a racist skinhead to sit on — in on its planning meetings. That means that if there is an environmentalist club that has a demonstration in Sacramento in favor of cap-and-trade legislation, they would have to allow -JUSTICE

GINSBURG: It may be –

MR. McCONNELL: — a global warming skeptic to –

JUSTICE GINSBURG: It may be an ill-advised policy, but the school says: It’s our policy, it’s working fine, and all the — the hypotheticals about sabotage, takeover, they haven’t happened.

To the merits, McConnell attempted to draw broad distinctions between discrimination on the basis of status and the basis of race.

JUSTICE SOTOMAYOR: So what is wrong with the purpose of a school to say, we don’t wish any group that doesn’t — that discriminates?

MR. McCONNELL: The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis Hastings is able to enforce. But they may not tell a group –

JUSTICE STEVENS: What if the beliefs –

MR. McCONNELL: — that we don’t have to let you in if we don’t agree with you.

JUSTICE STEVENS: What if the belief is that African Americans are inferior?

MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status. So that if there were racist organizations –

I never understood the difference between discriminating based on beliefs (e.g., religion) and discriminating based on status (e.g., race). Why is the former acceptable, but the latter is not?

Justice Ginsburg returned to this theme later:

JUSTICE GINSBURG: Mr. McConnell, let’s say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that’s based on their fundamental belief that that’s what the Bible instructs. On your view, must Hastings give this organization status as a recognized student organization?

MR. McCONNELL: No, Justice Ginsburg. Our position is it is unconstitutional to — to prohibit groups to form around beliefs but not around status.

JUSTICE GINSBURG: But the belief is — this is the belief.

MR. McCONNELL: They can insist that — that everyone who participates in the group have that belief, and that, as Justice Scalia said, may mean it’s going to be a very small group. But they cannot discriminate on the basis of status. But belief — as this Court said in Cantwell v. Connecticut, belief, the freedom to believe, is absolute –

Does this mean that people would have to ignore their beliefs in practice?

JUSTICE GINSBURG: So, they — would have to negate their belief in their practice. They could believe this, but they couldn’t implement it?

MR. McCONNELL: Well, it’s not unusual to say people — people can believe in all kinds of things that are illegal. That doesn’t mean that they can do

This is quite an admission.

Justice Kennedy also touched on the fact that this is not a religion case, but is a free association case, however much CLS sought to cast this as a religion case.

JUSTICE KENNEDY: Of course, that is not a religion case. Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don’t we also have a tradition of separation? That’s the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs.

And it — it — it seems to me we have to consider that when we are considering your argument. Now you can cite Rosenberger, but — but I think this is different from that.

MR. McCONNELL: The separation is between church and State, but this Court has held over and over again that speech forums — that people participating in a speech forum are not the State. The State is Hastings. We are perfectly private. There is nothing wrong with a religious organization, even on public

…

JUSTICE KENNEDY: I had thought that an important part of the case, of your case, is that belief is inherent to the idea of religious expression and must be protected. But if the protection causes problems within the school for other policies, then doesn’t the separation policy come into play? That’s — that’s what I’m asking.

MR. McCONNELL: Again, separation does not apply to private parties when they are operating, even on government property.

Sadly, Justice Breyer was about to launch into one of his famous hypotheticals, but Justice Scalia (thankfully?) interrupted him.

JUSTICE BREYER: Let me make an imaginary example.

JUSTICE SCALIA: Where — where is the stipulation?

Though later Justice Breyer got in a lengthy hypo about same sex marriage that confuses McConnell, and possibly Scalia.

JUSTICE BREYER: If — if a homosexual person said, I want to belong to this club, and I believe in its principles, I don’t believe in sexual relationships before marriage, and that’s why I want to work for homosexual marriage, which I do, so my consistency there, is that person — I am consistent in what I work for, what I believe, and on — as far as premarital sex is concerned, it’s totally 100 percent with your organization that you are representing; would they admit that person or not?

MR. McCONNELL: Yes. There is a joint stipulation to that effect, No. 34.

JUSTICE SCALIA: CLS doesn’t have any — any belief that marriage is between a man and a woman?

MR. McCONNELL: It — it does. I thought that Justice Breyer posited the case of a person of homosexual orientation who shares that belief.

JUSTICE SCALIA: No, no, no, no.

JUSTICE BREYER: He shares the belief that there should be no premarital sex -JUSTICE

SCALIA: But he wants to marry –

JUSTICE BREYER: — and he says that’s why I am working for Proposition 8 or whatever the proposition, or against it –

MR. McCONNELL: Oh, oh, I’m sorry, Justice Breyer -JUSTICE

BREYER: I’m working to legalize homosexual marriage.

MR. McCONNELL: I’m sorry. I misunderstood your question. This is a religious group. Their understanding of marriage is based upon – [I think he was about to say marriage is based on a relationship between one man and one woman but Breyer interrupted him J.B.]

JUSTICE BREYER: But the answer is no, that person –

MR. McCONNELL: Not if that person was engaging in sexual conduct that is contrary to the –

JUSTICE BREYER: No, he’s not, because his sexual conduct

MR. McCONNELL: — or, I’m sorry –

JUSTICE BREYER: — until marriage is made lawful, at which point he intends to engage in sexual conduct.

MR. McCONNELL: That’s right. If the person –

JUSTICE BREYER: That person.

MR. McCONNELL: Regardless of what he intends to do, if he does not agree with the — the organization on the point of — of marriage, then he can be — he can be excluded from leadership in the group.

Again, he’s able to attend all the activities. CLS has all of its activities entirely open to everyone. And what it objects to is having — is being run by non-Christians, because after all, this is a group whose very purpose is

Curiously, Chief Justice Roberts ask a question about La Raza, a group that Justice Sotomayor had ties to.

CHIEF JUSTICE ROBERTS: No, you are talking about La Raza background. As I understand it, the La Raza organization says you have to be of La Raza background to be a policy member of the organization.

MR. GARRE: The La Raza bylaws — first of all, they did explicitly say that groups could not exclude members on the basis of sexual orientation.

Now, they — there was some confusion about how La Raza had interpreted their bylaws. The school went back to La Raza and said: Are you excluding members? La Raza said: No, we are not; we are open to all. And to eliminate any doubt, they amended their bylaws. That’s the one example they’ve come up in the 20-year history of this policy. And what does it show? If you want to look at

Justice Alito asked Garre about Orthodox Jewish or Muslim groups who separate men and women during religious services:

JUSTICE ALITO: If an orthodox — if an orthodox Jewish group or a Muslim group applied for recognition and the group said part of our beliefs is -one of our beliefs is that men and women should sit separately at religious services, would Hastings deny registration to that group?

MR. GARRE: If it was excluding students from that group on the basis of their beliefs or their status, then, yes, it would.

Hastings isn’t in the business of second-guessing the — the beliefs of — of individual groups, and the whole point of the policy really is to stay out of this, to just have a blanket that is equally neutral.

JUSTICE ALITO: We have two amicus briefs from two orthodox Jewish groups and a brief from a Muslim group. So, your answer is that they could not be recognized under a Hastings’ policy because of their religious beliefs regarding the way religious services should be conducted?

MR. GARRE: Your Honor, I think even my friend recognizes that a group could not exclude an individual on the basis of their gender or their beliefs — on the basis of their gender or race Remember the Bob Jones case –

Justice Breyer continued on that line of questioning:

JUSTICE BREYER: What is supposed to happen? I don’t know the answer to this. Hastings, let’s say, or Berkeley has four or five or six different religious chapels for services on Sunday or Saturday, and they say we are open to all branches of religion, orthodox Jews, conservative, and reformed. And then the orthodox say we want men and women to sit separately.

Now, can Hastings say or Berkeley, no, we will let the reform come, we will let the conservatives come, but not the — not the orthodox Jews. They can’t have their service. Would — would that be constitutional?

MR. GARRE: Your Honor, I think it would be a much different case.

JUSTICE BREYER: But what is your opinion?

MR. GARRE: I — I think if the school is regulating outside of the purposes of a limited forum, public forum for recognized groups, then I doubt it could go in –

JUSTICE BREYER: So if, in fact, the -the — the — they have clubs and they are not services, and what they do is they discuss — they discuss the -the — the nature of the service, and there can they have separate discussions –

MR.GARRE: Where — where –

JUSTICE BREYER: — men from — men and women?

MR. GARRE: Where the rule operates on a viewpoint neutral basis. Here what the — the school is doing, is it is publicly subsidizing –

JUSTICE BREYER: I guess your answer to that is that the orthodox Jews cannot? They cannot have separate women’s groups in their organization, which is an after school religious organization.

MR. GARRE: They can exist separately –

JUSTICE BREYER: Outside of the university, et cetera.

MR. GARRE: In fact, Your Honor, it’s not –

JUSTICE BREYER: That’s their problem here.

MR. GARRE: — unusual for schools to have all male or all women clubs. These are not recognized parts of the community. These — these are activities that are subsidized by the students themselves for the mandatory student activity.

JUSTICE BREYER: And their reason to put in a sentence as to why they don’t want these orthodox Jews to meet separately on the campus, men in one group and women in another, and discuss the religious service, they want none like that, and their reason for wanting none like that is?

MR. GARRE: Well, I think that’s a much different example in this case.

JUSTICE BREYER: I’m trying to make it as close as possible.

MR. GARRE: Well, I — I may have misunderstood the hypothetical. I mean, I think it’s much different

Chief Justice Roberts also drew distinctions between status (gender, race) and belief (religion).

CHIEF JUSTICE ROBERTS: But that’s because gender or race is fundamentally different from religious brief. Gender and race is a status. Religious belief, it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we have always regarded that as a good thing. That type of exclusion is supported in -in the Constitution. The other types of exclusion are not.

MR. GARRE: But not at all costs, Mr. Chief Justice. In the Bob Jones case, the claim was from a — a small private religious school that has sincere religious belief that people who believed in interracial dating should not become members of their school. And this Court, nevertheless, held that that belief, sincere as it was, did not trump a statute that denied education — denied Federal financial assistance on a viewpoint neutral basis to schools that discriminated on the basis of religion.