The Supreme Court today denied review in a case brought by Christian student groups against San Diego State University, declining consideration of the question of whether colleges can require student groups to adhere to religious nondiscrimination policies in their membership decisions.
The Alliance Defense Fund, which represented the SDSU student organizations, had asked the court to consider whether a university can allow student groups to have membership requirements based on nonreligious beliefs but not religious ones -- a characterization of the policy that the university had argued was inaccurate.
The question was left unanswered in an earlier case, Christian Legal Society v. Martinez, because there the court considered only whether the policy of the University of California-Hastings that student groups must accept "all comers" was a constitutional policy. It decided in that 2010 case that such an "all comers" requirement was constitutional.
The plaintiffs, the Alpha Delta Chi Christian sorority and Alpha Gamma Omega Christian fraternity, lost on appeal to the U.S. Court of Appeals to the Ninth Circuit on the main question of whether the school's former policy was constitutional (decision) and were seeking Supreme Court review -- a petition of certiorari (see SCOTUSblog) -- of that decision.
The court announced today that it had denied the petition for certiorari, which means the Ninth Circuit's decision stands. No justices announced their disagreement with the decision not to hear the case. The decision is not a resolution by the Supreme Court of the legal questions raised that would serve as a precedent across the country; it does, however, mean that the Ninth Circuit decision stands as a precedent for all lower courts within the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The school, represented by Neal Katyal, the former Department of Justice acting solicitor general who is now a partner at Hogan Lovells LLP, had advised that the court should not take the case because SDSU had since altered its student group policy to an "all comers" one like that approved in the CLS case. As such, the school argued, the case was moot.
The student organizations countered that the new "all comers" policy was only invoked at the last minute and was insufficient because it included an "exemption for gender-based discrimination by fraternities and sororities."
In addition to the mootness question, though, the school had argued more fundamentally that the ADF brief was "incorrect" in its description of the school's prior policy. Katyal wrote for SDSU, "[T]he former policy forbade exclusion not just on the basis of religion, but on the basis of any of the grounds protected by anti-discrimination law -- 'race, religion, national origin, ethnicity, color, age, gender, marital status, citizen- ship, sexual orientation, [and] disability.'"
Finally, the procedural posture of the case was such that questions about whether the school had selectively enforced its policy against the Christian Greek letter organizations were to be further considered by the trial court on remand. As such, SDSU argued, "This case would present a remarkably poor vehicle for review given that Petitioners' theory turns on unresolved facts that await elucidation in the District Court."