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Julie Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), available at SSRN.

The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law.  On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups.  On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom.  Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines.  Too much of what I’ve read about the case succumbs to this reductive reading.

Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions.  Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth.  It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm.  Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.”

Nice acknowledges that the United States Supreme Court has “not yet provided any framework for understanding the ways that liberty and equality interrelate” and that no scholarly consensus or “grand theory” has emerged.  In some ways, Nice’s own article contributes to this scholarly quest, although arguably her claim is the more modest one of seeking to “understand what was at stake in this particular controversy and to explore the implications of the decision.”  But the “particular controversy” in CLS v. Martinez is quite complicated; much of the oral argument was devoted to the record.  However, as Nice points out, the disagreement between Justice Ginsburg ‘s opinion for the Court and Justice Alito’s dissenting opinion is not so much factual as in the ultimate characterization of the facts, especially the motivations of the law school.  Nice writes that where “Justice Ginsburg and the majority saw textbook neutrality, Justice Alito and the dissenters saw obvious pretext.”

Nice explains this disagreement through a difference in the lenses of time, place, and money.  While this obviously resonates with the First Amendment doctrine of “time, place, and manner,” Nice’s discussion here is not primarily doctrinal.  The issue of money (and perhaps, manner) is the “dangling of the carrot of subsidy, not wielding the stick of prohibition,” as Nice quotes Justice Ginsburg’s opinion.  As for place, the law school’s “limited public forum” for student groups allows Ginsburg to select a more lenient level of scrutiny to evaluate the school’s action.  But the time to which Nice refers is not during the law school day or calendar, it is the time of post-Lawrence and post-Romer.  The Court’s 1996 decision in Romer v. Evans (declaring unconstitutional as violative of equal protection Colorado’s Amendment 2, prohibiting anti-discrimination laws that included sexual orientation) and the 2003 decision in Lawrence v. Texas (declaring unconstitutional as violative of liberty under substantive due process Texas’ criminal sodomy statute) have made a difference.  At least for the majority of members of the Court, sexual minorities are now considered “a class to be deserving of ordinary constitutional protection.”  It is this insight, which she names “self-evident,” that animates Nice’s article.

This is not to minimize her spectacular and succinct analysis of First Amendment precedent, which includes a discussion of the “sex discrimination trilogy,” the “sexual orientation duo,” and the “sleeper comparison” case of Ysura v. Pocatello Education Association, which involved union payroll deductions for public employees.  Reading Nice’s analysis, even if one knows these cases  ̶  and perhaps especially then  ̶  reorients and reorganizes the doctrinal and theoretical meanings of the cases and their relationships.  Also helpful is her reminder that First Amendment doctrine provides “an array of options for framing and deciding any particular dispute” and her explanation of how the opinions in CLS v. Martinez execute their choices.

But, as Nice concludes, if CLS should complain that Hastings Law School’s decision to afford equal treatment to sexual minorities has” trumped” the liberty of interest of CLS to receive governmental support for its own moral disapproval of sexual minorities, CLS would be right. However, this might be true because “CLS simply failed to persuade a majority of the Court that Hastings enacted or applied its nondiscrimination policy for recognition of student groups at least in part because of its adverse effect on fundamentalist Christians.”  As such, CLS v. Martinez “effectively brings cases involving incidental effects on expressive association into the broader equality fold, requiring proof of intent before such incidental effect or disparate impact will raise the Court’s suspicion and its scrutiny.”

Additionally, and perhaps even more importantly, Nice concludes that “rather than perceiving Martinez as merely about equality trumping liberty,” it may actually enhance liberty by distinguishing between ideology and identity.  On this view, the majority of the Court in Martinez refused to “perpetuate the presumption that the mere presence of an openly gay member in the Christian Legal Society necessarily would alter the organization’s message.”  By refusing the conflation of identity and ideology, the case “enhances liberty, making space for an individual to embrace any religious ideology regardless of his or her sexual orientation.”

Within the space of 40 pages, Nice convinced me that not only is CLS v. Martinez “no outlier,” but also that it will come to be seen as a decisive engagement, just as we view that other Battle of Hastings.

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Cite as: Ruthann Robson, Battle of Hastings, JOTWELL (September 9, 2011) (reviewing Julie Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), available at SSRN),