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Hastings Constitutional Law Quarterly

Abstract

In this article, Professors Brownstein and Amar critically examine the important freedom of association and viewpoint discrimination arguments raised in the Christian Legal Society v. Martinez case. The authors agree with the Christian Legal Society ("CLS") that the Hastings nondiscrimination policy imposes serious burdens on the associational freedom of registered student groups ("RSOs") at the law school. To determine if that policy is constitutional, however, it is necessary for the Supreme Court to determine for the first time the extent to which freedom of association receives first amendment protection in a limited public forum. That analysis requires the translation of conventional free speech classifications such as viewpoint discriminatory, content discriminatory and content neutral regulations into a framework that can be meaningfully applied to burdens on associational freedom. Brownstein and Amar argue that the Martinez opinion can be best understood by extrapolating from free speech categories and evaluating the Hastings membership requirements in terms of their propensity to either dampen or distort debate.

The Martinez decision is particularly significant because it represents the first time that religious speakers and groups have been subject to the same very limited protection that secular speakers and groups have routinely received in limited public forums over the past two decades. Because prior Supreme Court cases so frequently concluded that the exclusion of religious groups from nonpublic or limited public forums constituted viewpoint discrimination, which is subject to strict scrutiny.

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