CLS v. Martinez and the hiring question

Brownstein, Alan aebrownstein at
Tue Mar 30 17:54:27 PDT 2010

While one can never know what the Supreme court will do with a case, I see no serious connection between CLS v. Martinez and the question of whether religious organizations that receive government funds to provide social services can discriminate on the basis of religion in hiring employees to staff those programs. If Hastings College of Law contracted with CLS to provide general tutoring services in first year classes and CLS refused to hire tutors who did not adhere to its statement of faith, you would have a case on point. In Martinez, Hastings neither sponsors nor endorses the activities of registered student organizations and provides these student group access to facilities and support for the purpose of creating an opportunity for the expression of diverse viewpoints. No one is hired to provide educational services to students. The CLS brief begins with the sentence "This case involves a public law school's exclusion of a group of religious law students from a forum for speech."

This isn't just the wrong tree. It's an entirely different forest.

Alan Brownstein

From: religionlaw-bounces at [mailto:religionlaw-bounces at] On Behalf Of Ted Olsen
Sent: Tuesday, March 30, 2010 2:00 PM
To: Law & Religion issues for Law Academics
Subject: CLS v. Martinez and the hiring question

So I was planning to write something up about the ramifications CLS v. Martinez<> might have for the longstanding debate over whether federally funded religious groups (World Relief<,0,5426879.story>, World Vision<>) should be forced to hire employees that disagree with the organizations' statements of faith (or, alternatively worded, should be allowed in hiring to discriminate on the basis of religion).

It seems likely to me that a major reason the White House and DOJ haven't said anything about this is because this case was coming and would significantly determine the answer to the question.

BUT since CLS is placing a fair bit of emphasis on university's place as "peculiarly a marketplace of ideas," I suppose the court could decide this in a way that would have little bearing on hiring at, say, Catholic Charities, World Vision, or Samaritan's Purse.

Am I barking up the wrong tree? Is CLS just a higher ed access to "campus forum"/funds case? Or is this the antidiscrimination rules vs. religious identity battle so many have been waiting for?

Ted Olsen
Managing Editor, News & Online Journalism
Christianity Today
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