PEACEFUL COEXISTENCE

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cases of “religious hardship” without compelling reason.’” 95 Such a discrepancy triggers strict
scrutiny of the government’s denial of the exemption to the religious group. 96
Of course, this is precisely why “all-comers” policies are rare: they must be applied
without exception to all student groups. In Martinez itself, the Court hardly endorsed an
“all-comers” policy when it observed that “the advisability of Hastings’ policy does not
control its permissibility.” 97
Single-sex sororities and fraternities, a cappella groups, and intramural sports teams are
incompatible with an all-comers policy.
The Martinez facts were unusual, not only because of the unique all-comers policy, but also
because the school at issue was a stand-alone law school and not a major university. The law
school did not need to weigh the impact of an all-comers policy on single-sex sororities and
fraternities, a cappella groups, and club sports teams. If an all-comers policy were
implemented, the University would have to abandon its current exemption for fraternities
and sororities to select members according to sex. Besides ending selection of members and
leaders on the basis of sex, an all-comers policy would require fraternities and sororities to
adopt a “first-come, first-pledge” selection process because all groups must be open to all
students. The Greek system is the antithesis of an all-comers policy, based as it is on
selection of members through the highly subjective “rush” system.
Colleges frequently invoke Title IX’s exemption for fraternities and sororities, but that response
is a red herring. Title IX gives fraternities and sororities an exemption only from Title IX itself,
which prohibits sex discrimination in higher education. 98 It does not give fraternities and
sororities a blanket exemption from all nondiscrimination laws or policies, including a
university’s own nondiscrimination policy or an all-comers policy.
An all-comers policy undermines the very protection for minority groups that
nondiscrimination policies are intended to provide.
In a remarkably candid PBS interview, the acting dean of the law school in Martinez
admitted that its all-comers policy required an African-American student group to admit white
95
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 537 (1993), quoting Employment Div. v.
Smith, 494 U.S. 872, 884 (1990).
96
“[A] law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to
that supposedly vital interest unprohibited.” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S.
418, 433 (2006), quoting Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520, 547 (1993)
(quotation marks and ellipses omitted).
97
130 S.Ct. at 2992 (original emphasis).
98
20 U.S.C. 1681-1688 (2013).