CHURCH AND STATE AT THE CROSSROADS: CHRISTIAN LEGAL SOCIETY V. MARTINEZ

Abstract

One of the recurrent battlegrounds in American constitutional law concerns the vexed relationship between church and state. At an abstract level, the discussion is often cast as a disagreement between those who wish to retain a strong wall of separation between the two and those who think that some accommodation between them better fits the national landscape. To be sure, this account is some what overdrawn. The strictest separationist recognizes that some public services must be supplied to private churches, and the most ardent accommodationist recognizes the need to place some limits on the level of interaction between church and state. The disagreements often come over just how all that is to be achieved. These crosscur rents recently came to a head in the bitterly contested decision of Christian Legal Society v. Martinez, issued on the last day of the October 2009 term. The decision illustrates both the built-in tension between the Free Exercise and Establishment clauses and the important role that the doctrine of unconstitutional conditions may play in setting the ground rules for state interaction with religious organizations.

As with many great cases, the facts of CLS were stark in their simplicity. The Christian Legal Society applied for the privileges that Hastings Law School, a public institution, normally affords to all “Registered Student Organizations,” and was turned down because of its unwillingness to admit into its ranks those students who did not share its fundamental commitments, which included a rejection of homosexuality and a strong commitment to sex only within marriage.