UPDATE ON CLS V. MARTINEZ

Tim Burke, Manley Burke, tburke@manleyburke.com

The Christian Legal Society case which earlier resulted in a 5 to 4 decision by the United States Supreme Court¹,  upholding the denial of recognition to CLS by Hastings College of Law was returned to the United States 9^th  Circuit Court of Appeals on the question of whether or not Hastings’ policy requiring organizations to admit “all-comers,” had been selectively enforced but added the limitation that the issue need only be considered by the lower court “if, and to the extent, it is preserved.”  The Ninth Circuit, having considered that question, ruled in mid November that the question had not been preserved.

CLS had presented a single issue when it initially appealed their case to the Court of Appeals.  That was whether or not a public law school could, consistent with the Constitution, deny a religious student group the benefit of recognition because membership and officer status was limited based on religious belief.  The 9^th  Circuit found that single issue did not encompass the question of selective enforcement of the “all-comers” policy and therefore determined that it had no obligation to give any further consideration to the case.

While CLS could attempt to appeal again to the United States Supreme Court, it is unlikely that the court would consider this dispute again.  Under these circumstances, it appears that the CLS case is at an end and the potentially troubling decision of the U.S. Supreme Court will stand as is.

1  Christian Legal Soc’y of the Univ. of Cal. v. Martinez 130 S. Ct. 2971(2010)

2  Christian Legal Soc’y of the Univ. of Cal. v. Woo, Ninth Circuit Court of Appeals, (9^th Cir. Nov. 17, 2010) 2010 U.S. App. LEXIS 23727