Hastings Constitutional Law Quarterly


Toni M. Massaro


In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization ("RSO") policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that the Christian Legal Society ("CLS") was obliged to comply with an "all-comers" condition on access to benefits, despite the burden on CLS members' expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access that did not unduly infringe on the group's right to exclude members and officers who did not share its core beliefs.

This case falls at the intersection between government power to condition access to its benefits and fora on legitimate and non-neutral conditions, and the right of individuals and groups to access without barriers that may be described as "unconstitutional conditions." The tension between these interests is an enduring and complex one, and applies to a broad range of government programs.

The particular tension in Martinez-whether religious associations have a constitutional right to exemption from generally applicable nondiscrimination rules, and whether these generally applicable rules are themselves a form of viewpoint discrimination against some forms of religious expressive association-is one of the most hotly contested and often litigated issues today. Martinez is hardly the last word in this debate.

This Article focuses on the wider landscape within which the case can be located. It notes that the Court identified two primary frames for analysis-whether the RSO program was a "carrot" or "stick" form of regulation-but ignored other possible frames for the issues and thereby missed an important point about government imprimatur and the long shadow of state action that enables private discrimination. It explains why the state action frame is an extremely important baseline for understanding the practical, legal and political dynamics at stake, and suggests a common way of analyzing the constitutionality of conditions on funding and fora that is based on this state action baseline. In the conditions on benefits and fora cases ahead, these observations may offer courts greater insight to the legal and practical complexities involved, as well as a new model for analyzing them.