WASHINGTON-Ashton Dennis couldn't sleep.
"You roll to the right, you see the Capitol, you roll to the left and you see the Supreme Court," she said, burying her head inside her sleeping bag. Dennis is one of nine students from Eastern University, a Christian college near Philadelphia, and she was halfway awake on the steps of the Supreme Court. It was midnight, in the mid-40s, with clear skies overhead and the security guard puttering back and forth across the court's spacious porch.
Some college students camp out for a spot at a concert; these nine, all in a constitutional law class together, were first in line for tickets into the high court's oral arguments the next day in a case that will decide the fate of a Christian student group in a public university. It's a bad time of year for a road trip: Finals are just over week away, noted the students' professor Kathy Lee, who didn't say much else because she was trying to sleep in a camping chair. The students ordered pizza, but the Domino's delivery guy didn't know where the Supreme Court was. They gave him directions over the phone-it's right next to the Capitol, they said.
The Eastern University students are divided over the case, but one wants to tell a ghost story instead of spending more time debating. The case concerns a chapter of the Christian Legal Society that students tried to form at the University of California's Hastings Law School about six years ago. The school refused to recognize the student group based on the school's "all comers" policy that requires clubs to accept anyone into membership. The school argued that it shouldn't be providing resources to the group because it required voting members or leaders of the group to sign a statement of basic Christian commitments.
The denial of official student group status meant that the Christian Legal Society (CLS) chapter didn't have the same access as other groups to space on campus, the student email network, or the student activity fund. CLS sued to be recognized on the basis that its First Amendment rights had been violated-that others had been provided a forum for public speech, but they had been denied. A federal judge ruled against CLS, and then the 9th Circuit Court of Appeals ruled against the group, too.
If history is any guide, the Supreme Court agreed to hear the case because it is interested in overturning the 9th Circuit's ruling. The lawyer for CLS, Michael McConnell (incidentally a former judge who was on the short list for the chief justice seat John Roberts now holds), argued a similar case before the Supreme Court in 1995. Rosenberger v. University of Virginia concerned a public university denying funding to a student group that published a religious magazine, and the court ruled in favor of the student group. "It's like Return of the Jedi," said Jordan Lorence, another lawyer working with CLS on the case.
Support for CLS in the case isn't limited to evangelicals: A libertarian gay group, a Muslim group, and 14 states filed briefs in support of the Christian group; The Washington Post penned an editorial excoriating Hastings.
No one on either side of the case seems to think that Hastings' "all comers" policy is especially wise; a Democratic club would have to allow Republicans into voting membership and leadership, for example. The school doesn't appear to have enforced its rule consistently. Other recognized student groups, like La Raza, had ethnic standards for membership but changed the standards only after a CLS lawyer pointed it out in the course of this case.
Hastings' beef with CLS is that the group requires that members in good standing live Christianly-not in sexual immorality, which includes homosexuality, a standard that the school argues amounts to discrimination based on sexual orientation. "Bigotry toward the LGBT community . . . can't be sanctioned by the government, and it certainly cannot be given a dime in student funds," commented Barry Lynn from Americans United for Separation of Church and State, which supported Hastings in the case. More than 50 gay law student groups filed briefs in support of Hastings, on the grounds that the school should not have to "subsidize groups that engage in discrimination."
Hastings' lawyer, Gregory Garre (incidentally a George W. Bush appointee as solicitor general, who formerly argued the government's position on cases before the high court) compared the case to the Supreme Court case that stripped Bob Jones University's tax-exempt status because of its ban on interracial dating. Courts still tend to treat sexual orientation as different from race, even though Justice Sonia Sotomayor compared CLS' position on homosexuality to racism.
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.
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?