Joe:

Do you know if the Hastings case (mentioned in your article) heard by a district court in the 9th Circuit has been appealed, etc.? Do you know if the 9th Circuit has heard the case, decided it, etc.? How likely do you think it is that one of these cases will make it to the Supreme Court?

This is the latest I can find. I scanned recent 9h Circuit opinions and, not surprisingly, couldn’t find anything. The wheels of justice turn slowly.

Joe:

Thank you for the information. I know little about 1st amendment law, but find this issue interesting. I wonder if the Religious Freedom Restoration Act could give CLS groups a statutory (non-Constitutional) cause of action against state schools? The RFRA was recently used against Ohio prisions and the Supreme Court upheld its constitutionality (Cutter v Wilkinson I believe). Some people think the RFRA applies to the tax code as well, thereby invalidating 501(c)(3)’s prohibitions concerning churches. The RFRA might be used a lot more often. Do you know much about it?

Unfamiliar as I am with Federal procedure, I would appreciate it if there is a federal practicioner to correct me if I’m wrong, but it seems to me that the strongest argument for CLS in the Hastings case should have been the one involving equal protection. It would seem to be pretty obvious that the school is denying CLS of equal protection when the school admits a Muslim organization, which bars homosexual membership, and precludes CLS because it has the same policy. It’s possible that the Muslim organization has paid lip service to allowing gays to be members but such lip service is nothing more than an exercise in fiction. The court, however, gave incredibly short shrift to the equal protection argument, stating as follows:

CLS’s equal protection claim fails for two independent reasons. First, it has not presented any evidence that it has been treated differently from other student groups. Second, CLS has not submitted any evidence of discriminatory intent.

The first of the following questions is where I need help from a federal court practicioner: Does one submit evidence at a motion for summary judgment? If so, did CLS offer evidence of Muslim policies? If so, why did the court ignore that? If one does not submit evidence at a motion for summary judgment, how could the court use the failure to present evidence, at a non-evidentiary hearing, as a basis for a denial of a constitutionally protected right to equal protection? Either way, that’s astonishing. Further, Hastings’ intent to discriminate can be inferred by the fact that it has singled out CLS among all those exclusionary groups, including and especially the Muslims. Also, consider the fact that Hastings itself violated its own policy:

The Policy prohibits discrimination on the basis of protected categories, including religion....

As to the free exercise of religion clause argument, the court was bound by the 9th Circuit precidents and CLS was bound to lose that argument. Still CLS had to present it to preserve it for the appeal to the U.S. Supreme Court.

precedents not precidents.

Uncle Guido:

I am not a federal practioner, I am still in law school. I did ok in Federal Civil Procedure so maybe I can offer some insight.

Federal Rule 56 governs summary judgment. Check out 56(c) and 56(e). The moving and adverse party both may submit "depositions, answers to interrogatories, and admissions on files, together with the affidavits...." Furthermore 56(e) provides that an adverse party must show some evidence more than mere denial of the moving party’s pleading, the "adverse party’s response, by affidavits or otherwise provided in this rule, must set forth specific facts showing there is a geniune issue for trial"

I remember we read a case where the adverse party simply denied the moving party’s depositions, etc. without any factual support. The judge ruled there was no geniune issue of material fact even though the adverse party denied the moving party’s claims.

My Civ Pro professor always said that summary judgment is a paper trial. You submit all the evidence you want other than actual testimony on the stand before the court.

Steve:

No relief from RFRA against state actors. See City of Boernes v. Flores. The Cutter case you cite involved a federal prison, not a state one, and, as I recall, was based not on RFRA, but RLUIPA (Religious Land Use and Institutionalized Persons Act).

Thanks Steve.

So I guess the question becomes did CLS offer evidence of other groups’ discriminatory policies. If not, perhaps they deserved to lose.