Duck, Duck, Goose . . . Because You’re Christian: An Analysis of Selective Enforcement and Viewpoint Discrimination in a Limited Public Forum in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)

In a line of Supreme Court cases concerning restrictions on speech in a limited public forum the Court holds that “any access barrier” must be both reasonable and viewpoint neutral. In April 2010, the stipulated “all-comers policy” in place at the University of California, Hastings College of Law (Hastings) survived a facial challenge to this test. The Court held Hastings’s open-access condition on Registered Student Organization (RSO) status was both reasonable in light of the purposes of the limited public forum and viewpoint neutral. The student branch of the Christian Legal Society (CLS) at Hastings was thus denied RSO status because it refused to admit members unless they were willing to affirm their belief in certain Christian doctrines and refrain from “participation in or advocacy of a sexually immoral lifestyle.” While on its face the all-comers policy withstood a constitutional challenge, on remand the lower courts should examine the question of whether the policy was applied unconstitutionally. Hastings selectively enforced its policy against CLS while allowing other RSOs similarly situated to limit membership and leadership positions to those students who “agree[d] with the organization’s beliefs and purposes.” Because Hastings’s policy was selectively enforced any reason put forth by Hastings to justify its policy should be labeled defunct. The purpose of this Note is to demonstrate that, while the policy in question may have appeared textually both reasonable and viewpoint neutral, it was applied in such a way that amounted to viewpoint discrimination and violated the CLS’s First Amendment right to expressive association. Part II of this Note will set the judicial foundation governing First Amendment expressive association rights in a limited public forum, such as the one created at Hastings. Part III will present the relevant facts, holding, and reasoning of the Supreme Court in its decision to uphold the all-comers policy. Part IV will analyze the policy as the university applied it. When juxtaposed with Supreme Court precedent governing viewpoint discrimination against religious perspectives, Hastings’s actions should prove unconstitutional. Furthermore, the court on remand, when examining the reasonableness of the policy as applied, will likely be persuaded that the policy does not pass the reasonableness standard. Finally, Part V will present possible conclusions, including forcing Hastings to: (1) grant CLS an exemption from the all-comers policy or (2) to apply the policy to all RSOs equally