On April 23, Visiting Professor Richard Epstein, who will join the NYU Law faculty fulltime in the fall, appeared on the Federalist Society’s SCOTUScast to present a summary of the oral arguments held on April 19 in the United States Supreme Court case Christian Legal Society v. Martinez. Epstein served as Counsel of Record on an amicus curiae brief submitted by the Cato Institute in support of the petitioner. The brief was co-authored by Evan Turgeon and Ilya Shapiro.
The Christian Legal Society chapter at the UC-Hastings College of Law filed a lawsuit against the school in October 2004 when the student group was denied recognition by UC-Hastings because the group required officers and voting members to agree with the its core religious viewpoints. Without recognition, the Christian Legal Society could not make use of the school logo or the school’s facilities and rooms. In the suit, the group alleges that the exclusion of its chapter violates the students's right of expressive association and right to be free from “viewpoint discrimination.”

A key question in the case, Epstein said, is whether students lose their right to freedom of expression when they become students at a public institution. The Cato Institute’s brief argued that they should not: “As a public entity, Hastings does not have the power to discriminate among its student organizations simply because it can exclude the public at large from its premises,” the brief stated. “The Hastings nondiscrimination policy must fall before [the Society’s] constitutionally protected rights of intimate expressive association.”

“I think the majority of the Court will side with the Christian Legal Society on this decision,” Epstein said. “But this is somewhat of an open question. The argument was quite chaotic, and nobody seemed to get down to the exact central issues in the case, so a lot has to be left to speculation.”

Posted May 3, 2010