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Identity crisis

"Identity crisis" Continued...

Issue: "Flame-outs," May 8, 2010

But the heart of what the Supremes will decide is whether the school's policy is constitutional, preserving the freedom of association outlined in the First Amendment. Justice Ruth Bader Ginsburg, speaking in the oral argument Monday, seemed to think it is constitutional. "It may be an ill-advised policy, but the school says, 'It's our policy,'" she said. The school can promote diversity within groups if it wants, she posited, however ridiculous it seems that an atheist could lead a Christian Bible study.

The conservative bloc of the court seemed skeptical of Hastings' arguments. Justice Antonin Scalia called the policy "weird" and "crazy." Chief Justice John Roberts said Hastings' position was "continually evolving." Justice Sam Alito said the school was applying its policy in a "discriminatory manner." Justice Clarence Thomas said nothing-he hasn't spoken in the court in four years.

The Eastern University students simulated the case in the classroom, and decided it 5-4 in CLS' favor. In real life, the students are divided, too. Kaity Best, who played Justice Stephen Breyer, said personally, she sides with Hastings. "[Hastings] should be able to decide where those resources are allocated," she said. Classmate Jonathan James, a.k.a. Sotomayor, disagrees, saying the school shouldn't "interfere" with the groups.

If CLS were to lose, religious organizations inside and outside of campus life could feel the impact. If taxpayer money can't subsidize religious groups that organize around certain beliefs, that calls into question tax exemptions for religious organizations, subsidies in themselves, CLS' lawyers argue. It opens the door for the government to tell religious organizations what leadership they can have. Hastings argues that CLS can still exercise its First Amendment rights as it wishes, just without the official status and resources from the school.

"I had no idea CLS existed at Hastings at all," said Marina Grabchuk, a second-year law student at Hastings and a Christian. She sat further back in line the night before the case. "There's a Filipino club, there's a Muslim club, there's a Jewish club. There wasn't a Christian club . . . I felt left out my first year at Hastings," she continued. "Basically I was a minority minority."

CLS' lawyer, McConnell, made this point to the nine justices, that minority groups have much to lose under these policies. Any disliked minority group at a school could be overrun by the majority if there are no standards for membership. McConnell could be representing a gay group and make the same arguments, he commented to me later.

I asked one of the other lawyers representing CLS in the case why more gay and lesbian groups hadn't sided with CLS if this policy is so hurtful to minority groups. "I think they're being short-sighted," said Greg Baylor, one of the principal lawyers for CLS. "In the late '60s and '70s, it was the gay student organizations [that were being excluded]. Now the shoe's on the other foot."

Baylor spent the time leading up to the case with other lawyers helping McConnell prepare for the oral arguments, lobbing the hardest questions at him that they could-all while students set up camp on the court steps.

In the wee hours of the day of the oral arguments, at 1:23 a.m., sprinklers popped up outside the court, and one was trained on the Eastern University students.

"I was almost asleep!" groaned Carmen Weaver, dragging her wet sleeping bag out of range. Two American University students, who brought a queen-sized air mattress to their spot in line, slept through all of this. Around 7 a.m., the students roused themselves, packed up their supplies, and finally got tickets for the 10 a.m. hearing. Some of them slept in full suits and ties so they would be presentable in the courtroom. Then the hardest part became staying awake during the oral arguments.

Seniority's privileges

The court hears its final cases April 28, the last arguments Justice John Paul Stevens will hear before he retires. Stevens is the liberal bloc's preeminent strategist and is also the court's senior justice. Seniority on the court is a part of the chess match in reaching a decision on a case, and Stevens' retirement will give even more power to Justice Anthony Kennedy, the court's swing voter.

Chief Justice John Roberts always assigns the writer for the opinion for his side, whether the minority or the majority. The most senior justice on the other side assigns his bloc's opinion writer. Since Roberts and Stevens often ended up on the opposite side of decisions, Stevens as the most senior justice usually assigned opinions, a task he has done tactically.

Without Stevens, Antonin Scalia becomes the court's most senior justice, but he usually sides with Roberts on cases. The next in line of seniority is Kennedy, the swing vote. So whenever Kennedy votes with the liberal bloc on a case, he'll have the power to assign the opinion writer.

In practice, that would mean that Kennedy could find it attractive to vote with liberals on the court so he could control the opinion. If he disagrees with the conservative justices, but doesn't want an extreme liberal ruling, he could write a narrower ruling himself. How's that for office politics?

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD from New York City. Follow Emily on Twitter @emzleb.

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