Oral Argument in CLS v. Martinez

Today's oral argument before the Supreme Court in the case of Christian Legal Society v. Martinez reveals why the Supreme Court should stay out of micromanaging college campuses: they don't know what they're talking about, and they live in a world far from reality. If Tim Gunn was a Supreme Court justice, he'd probably rule the case a "hot mess."

My former professor Michael McConnell ran immediately into a buzzsaw arguing for CLS, and it seemed at first that McConnell made a big mistake in trying to push the idea that Hastings had a discriminatory policy rather than focusing on Hastings' espoused “all-comers” policy. Even Scalia seemed very dubious (and even angry) that McConnell was confusing everyone: “if that was it you should have brought in some -- some evidence of -- of different treatment of other groups.” Considering that CLS had stipulated to the “all-comers” policy earlier on (before McConnell joined the legal team, I think), it was a very hard argument to make.

Justice Kennedy, the most likely swing vote, also seemed very skeptical: “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.”

Justice Scalia tried to push the idea that any all-comer policy violated free speech, rather than the special rights of religious groups: “as I understand your argument on the all-comers policy, it is not an argument that -- that is based upon the religious nature of CLS. You would make the same argument of unconstitutionality with respect to the student Republican Club, wouldn't you?” That may be an argument that could draw Breyer and Kennedy in, but it doesn't make much sense at all.

Gregory Garre, representing Hastings, faced his own problems. Justice Breyer, normally a liberal vote, said: “So with that great unclarity, asked to decide a constitutional issue where I feel I need more facts and I don't have them, the more justification to know what it really is, which I don't have, what should I do?”
Justice Kennedy wondered, “And what if we think that the policy has not been evenhandedly applied? Can't we decide the case on that basis?”

McConnell quashed that idea in his rebuttal: “the Court must -- needs to reach the constitutionality of the all-comers policy as applied to CLS in this case.”

But Justice Breyer said: “I tend to sympathize with your view that it's so hard to believe that they really hold it, maybe they do.” It's incomprehensible to imagine why an “all-comers” seems so unreasonable to Breyer and the other justices, to the point that they would set judicial precedent without any evidence to support it.

McConnell's attempt to re-litigate the question of what is Hastings' real policy seemed like a mistake at first, but it turned out to be brilliant strategy. Because the “all-comers” policy had been stipulated, the Hastings side has never put together the legal evidence supporting the reasons for that policy. And McConnell effectively convinced the Court that “all-comers” was just a pretext for discriminating against a religious group, when there's no evidence to support that idea and it has nothing to do with the legal principles at stake here.

Sadly, it seems like the Supreme Court is determined to find some sort of legal pretext for ruling in favor of CLS, even though they lack the evidence and they don't believe in the legal principles behind it. I count six weak votes for CLS (including Kennedy and Breyer), and what will no doubt be a very short and vaguely-worded opinion that tries to avoid the mess both sides made of this case. However, there is some hope that the justices will take a stand of not getting involved in ordering around a public college without having sufficient evidence to support their stand. So it could easily swing 6-3 the other way, if Justice Stevens can find some persuasive arguments for his center-right colleagues.

Ultimately, I suspect that the Supreme Court, so deeply confused and annoyed by the facts in this case, will order it re-argued in the fall, without these stipulations, so that the real story can be determined. That's the wisest and fairest approach to take.