PEACEFUL COEXISTENCE

Discussion
9
persons to associate with like-minded others. Judicial opinions turning chiefly on expressive
association have been inconsistent and the doctrine undeveloped. 23
Viewpoint Discrimination
Two important Supreme Court free speech cases decided the question of impermissible
viewpoint discrimination against religious groups. Rosenberger v. Rector concerned an action
brought against the University of Virginia by a Christian student newspaper challenging denial
of funds for printing costs. 24 The Court found for the newspaper, holding that the school’s denial
was impermissible viewpoint discrimination under the First Amendment. Another, Good News
Club v. Milford Central School, 25 involved a Christian club for children that was refused
permission to use school facilities after hours. The Court again held that this constituted
impermissible viewpoint discrimination. 26 In both cases, the Court’s reasoning was that the
schools were singling out the Christian groups because of the groups’ views.
Viewpoint Neutrality
Christian Legal Society v. Martinez 27 (Martinez) was a narrowly decided case concerning the
limits of religious expression and association rights within a public university. This involved the
University of California Hastings law school’s refusal to grant official recognition to the
Christian Legal Society as a recognized, on-campus student organization, because it violated the
school's viewpoint-neutral “all-comers” policy. The “all-comers” policy said that no student
could be denied admission to or a leadership role in any school-sponsored or school-recognized
23
Compare Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Boy Scouts of America had an associational right
to bar homosexuals from serving as troop leaders as inconsistent with the values it seeks to instill) with Roberts v.
U.S. Jaycees, 468 U.S. 609, 618-621 (1984) (striking down Jaycees’ refusal to allow admission of women: “The
Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the
formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from
unjustified interference by the State ... factors that may be relevant include size, purpose, policies, selectivity,
congeniality, and other characteristics that in a particular case may be pertinent ... [but] the local chapters of the
Jaycees are large and basically unselective groups.” See also John D. Inazu, The Unsettling “Well-Settled” Law of
Freedom of Association, 43 Conn. L. Rev. 149 (2010).
24
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995).
25
Good News Club v. Milford Central School, 533 U.S. 98 (2001); accord Badger Catholic, Inc. v. Walsh, 620 F.3d
775 (7th Cir. 2010) (holding university could not refuse to fund a religious student organization’s speaker since it
funded other student group speakers).
26
Good News Club, 533 U.S. 98 (2001) (The Court rejected the school’s Establishment Clause claims); accord
Badger Catholic, Inc. v. Walsh, 620 F.3d 775(7 th Cir. 2010) (Judge Easterbrook held his opinion pending release of
the Court’s Martinez decision and held that the university could not refuse to fund a religious student organization’s
speaker since it funded other student group speakers).
27
Christian Legal Society v. Martinez, 561 U.S. 661, 130 (2010).