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Christian group's case marshals past plaintiffs
First Amendment Watch

By Tony Mauro
First Amendment Center legal correspondent
02.11.10

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WASHINGTON — An unusual brief filed recently in a pending Supreme Court case aims to take the justices down a memory lane of First Amendment precedents involving equal access of student religious groups to public university facilities and benefits.

The brief was one of several filed earlier this month in Christian Legal Society v. Martinez, which will likely be argued this spring before the high court. In the case, the Christian student group is challenging a ruling by the 9th U.S. Circuit Court of Appeals that said the University of California Hastings College of Law could withhold recognition of the group because it violated the university’s nondiscrimination policy.

The society chapter at Hastings ran into trouble for requiring that its members and leaders avow faith in Christian principles and not advocate sexual conduct outside a married, opposite-sex relationship.

The society’s supporters argue that the 9th Circuit ruling goes against a long line of Supreme Court precedents that support equal treatment of religious groups in public universities. The unusual brief comes from the American Center for Law and Justice, which filed its brief on behalf of several of the original religious participants in those past cases.

Among them:

All of the rulings advanced the principle that public educational institutions could not discriminate against religious groups in access and funding.

Jay Sekulow, chief counsel of the ACLJ, argued in Mergens and has represented several campus religious groups in similar fights. The plaintiffs in the past cases, said Sekulow in a statement, "recognize the importance of having leadership, and the authority to select leadership, vested in individuals who personally share the principles that guide a religious ministry."

Applying a government nondiscrimination policy against student religious groups, Sekulow wrote in the brief, "strays into forbidden territory" and "inevitably undermines the Court's equal access cases."

Former solicitor general Paul Clement, who also participated in writing the brief, said, "The idea in bringing those individuals and groups together on a single brief was to try to reinforce the argument that the Ninth Circuit's decision threatens to undermine the whole line of the Court's equal access precedents. It seemed that a good way to bring that point home was to bring together the plaintiffs in many of those cases."

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