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Hastings Constitutional Law Quarterly

Abstract

This article explores certain problematic aspects of the Supreme Court's modern First Amendment doctrine through the lens of the Court's 2010 decision in Christian Legal Society v. Martinez. In Martinez the Court upheld a decision by Hastings College of the Law, a public law school, to deny official recognition to a religious student group because the group excluded students based on their religion and sexual orientation. Applying free speech doctrine, the Court found that the Hastings's decision and the policy underlying it were reasonable, viewpoint-neutral restrictions on speech in a limited public forum. While the result reached by the Martinez Court is defensible, I argue that its analysis is entirely misguided. In particular, I point out that at its heart, the Martinez case was not a dispute about free speech at all; it was rather a dispute about freedom of association, and in particular about the right of Christian Legal Society ("CLS") members to choose who they wished to associate with. Seen in this light, the Court casual treatment of CLS's claims was indefensible. Nonetheless, I conclude that the result reached by the Court is basically correct. This is because the claim made by CLS, that it was constitutionally entitled to be a "Registered Student Organization" at Hastings with a right to use the Hastings name and to obtain funding from Hastings, is inconsistent with the underlying First Amendment associational right invoked by CLS. In short, I argue that the freedom of association protected by the Constitution must be understood, given its purposes, to be a right to form associations autonomous from the state. However, this requirement of autonomy cannot be reconciled with claims to state sponsorship and funding, and so the latter cannot be part of the First Amendment right. I conclude, however, by arguing that if CLS had brought an independent claim for access to Hastings's facilities, including use of on-campus meeting spaces and communications systems such as email, CLS should have prevailed. This is because while freedom of association does not incorporate a right to public sponsorship or financial support, it does include a qualified right to use otherwise available, government-owned public spaces.

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