Last week a federal judge issued a ruling for Business Leaders in Christ (“BLinC”), a religious student organization, in their case against the University of Iowa. In November 2017, BLinC was kicked off campus for requiring its leaders to sign a statement of faith. The students had been told that their beliefs concerning marriage and sexuality were “discriminatory on their face” and violated the University’s human rights policy. To be reinstated, BLinC would have had to delete any mention of these beliefs from its constitution and establish procedures for selecting leaders without regard to religion. Eric Baxter, from the Becket Fund for Religious Liberty, will talk about the lawsuit, how University officials explained their actions, and what impact the recent ruling in BLinC’s favor will have on CLS v. Martinez.
Eric Baxter, VP & Senior Counsel, The Becket Fund for Religious Liberty
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Tuesday, February 19, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon's subject is a Litigation Update on the Business Leaders in Christ v. The University of Iowa and the future of CLS v. Martinez. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us Mr. Eric Baxter, who is Vice President and Senior Counsel for the Beckett Fund for Religious Liberty. After our speaker gives his remarks today, we'll move to an audience Q&A, so please keep in mind what questions you have for this case, or related subject matter, or for Eric himself. Thank you very much for sharing with us today, Eric. The floor is yours.
Eric Baxter: Thank you, and good afternoon, everyone. I'm here to talk about the case Business Leaders in Christ (BLinC) v. The University of Iowa. This has been a fascinating case where we've represented BLinC for the last couple of years in their saga against the university. This case arises, or arose, in the shadow of the CLS v. Martinez decision by the Supreme Court in 2010. You're probably familiar with that case where the Christian Legal Society had a chapter on campus at the University of California, Hastings College of Law and were told that they could not have leadership standards based on sexual orientation or gender identity for their leaders or their students. The university in that case had just a standard nondiscrimination policy that included all the usual grounds that we think of – race, religion, sex, gender identity, sexual orientation, and so forth.
And initially, although the university told the Christian Legal Society that it could not have its religious standards for its leaders, the college initially admitted that the political, social, and cultural groups could have requirements for their leaders and members to embrace the mission of their particular group. Over time, as the case evolved, the parties eventually entered into a stipulation that Hastings had a true "all-comers" policy – that is that all groups are required to enter anyone into their leadership or their membership. Democratic party group on campus would have to admit Republicans, pro-life groups would have to accept people who are pro-choice, and so forth. That wasn't what was actually happening on the campus, but the parties stipulated that that was the intent of the policy.
Justice Ginsburg wrote the opinion for the Court in that case and applied the form analysis that the registered student organization policy on campus created a limited public forum. She held that the restrictions on leadership and membership were reasonable in light of the forum, and that there was no viewpoint discrimination because all groups were required to admit all students into both leadership and membership. Her theory was that if everyone's admitted, then there can't be viewpoint discrimination. Everyone is subject to the same restrictions. But she included a lot of additional analysis that significantly clouded the issue. She held that the university wasn't really trying to shut down groups, it just was refusing to subsidize them, and noted that it was specifically refusing to subsidize views and conduct with which the people of California has disapproved by enacting various nondiscrimination laws. And she held that even in the context of private religious student organizations that beliefs about sexuality and standards of conduct could be conflated, and that it was okay for the university to forbid leadership standards based on both belief and conduct.
Justice Stevens wrote a concurring opinion where he held that even without an "all-comers" policy, the university could fairly apply just its nondiscrimination policy as written to prohibit student groups from imposing leadership and membership restrictions on the bases set forth in the nondiscrimination provision. Justice Kennedy, who provided the fifth vote in the decision, expressed some significant concerns and said that if there were evidence of intent or a purpose to discriminate behind the policy that there would have been a different outcome, or if the "all-comers" policy had been designed to challenge leadership or to stifle the views of the organization that he would have ruled otherwise. But because he felt that the "all-comers" policy, or the stipulation about the "all-comers" policy, should be binding on the parties, he joined in Justice Ginsburg's decision.
This case, BLinC v. University of Iowa, is a good example of how the Court's opinion is not only just blatantly wrong but has led to significant confusion and gives other universities a lot of wiggle room to try to stifle student groups with views that the university doesn't like. So BLinC is a very small student group for undergraduates in the Business College at the University of Iowa. It was started in 2016 by four students who got together, wanted to meet regularly and invite Christian speakers to come in and talk about how to live their faith in the workplace. How do you deal with the stress of competition, the fast pace of the work world, the ethics issues that arise? How do you live as a Christian in that environment and continue to witness to others and to maintain standards that are consistent with your religious beliefs?
In early 2017, they were approached by a student who had been attending for a month or so who asked if he could be part of their leadership team. And as a small group that usually only had seven or eight people attending after they got going, they were anxious to have people who could participate in leadership and help run their activities. He came to them. They conducted an interview with him to find out if his values were consistent with the beliefs of the organization, and he acknowledged during the initial interview that he was struggling with his sexuality. He thought that he was gay. The executive board of BLinC met together to discuss that and agreed that he could serve as a leader if he accepted their beliefs about marriage and sexuality, which were that marriage was intended to be between a man and a woman and that any sexual conduct outside of that was sinful.
When they went back to Marcus Miller, he said, "No, I've made up my mind that I want to live as an openly gay man," and spent an hour with Hannah Thompson, who was then the president of BLinC, talking about their religious beliefs, going through the Bible, sharing their different understanding. And at the end, Hannah said, "We would love to have you continue participating as a member of our organization, but because your religious beliefs, your understanding of the Bible, the doctrine of repentance, your understanding of marriage and sexuality are so different from ours, it wouldn't work for you to be a leader." And so they amicably parted.
And some time later, Mr. Miller filed a complaint against BLinC specifically asking the university to force BLinC to admit him as a leader, claiming that BLinC, by denying him a leadership position, had violated the university's human rights policy. An investigation was commenced. The university called Hannah Thompson in to meet with two university lawyers who proceed to harangue her about her religious beliefs, ask her questions such as, "Do you believe gays have the same rights as you do? Do you believe they can worship the same God as you do? Do you hate gays?" And Hannah very patiently responded that Mr. Miller was welcome to participate in their organization, that the only reason why he had been denied a leadership position was because he rejected their religious values, that it was important for their group to have people who shared their religious viewpoint, and persistently made the case that the denial of leadership was based on a religious conflict, not based on Mr. Miller's sexual orientation. The university proceeded to -- or the investigator proceeded to make findings and concluded, even though she included Hannah's repeated statements about the religious conflict, she said she found that BLinC had discriminated against Mr. Miller because of his status.
We were brought in to investigate BLinC around that time and helped Hannah write letters to the investigator. She graduated in the spring of 2017, and Jake Estell became the new president. He also wrote a letter reiterating BLinC's position that it would not discriminate against anyone because of their status; it only required that its leaders share its religious beliefs. In September, we were called into a meeting with two university officials, the Assistant Dean of Students and the Director of the Student Union, which handles all of the student organizations. We were pleasantly surprised how the meeting went. They explained to us that they'd previously had an issue with the Christian Legal Society on campus over ten years earlier, and that CLS had wanted also to have the standards of conduct for its members and leaders, that the university had allowed that. The Assistant Dean of Students told us, "Just like we could not force an environmental group to select climate deniers as its leaders, we wouldn't be able to force a religious organization to select leaders who didn't share its religious beliefs."
So we were, frankly, shocked and wondering why, then, are we continuing this discussion? Why haven't you just granted that there's no problem going forward? We've already said even if you think we discriminated before, which we deny, everyone agrees that we're not going to discriminate on the basis of status going forward. And they said, "Well, we just think it's unfair for students to join your organization without knowing what your beliefs are, and they're not really laid out in your constitution, so if you will just amend your constitution to identify your beliefs, the students will know beforehand what they are getting into, won't have hurt feelings when they find out later that they can't be leaders, then we will reinstate your organization on campus."
So our clients agreed that they would update their constitution. They provided a statement of faith that explained basic Christian doctrines and included a paragraph regarding various Christian virtues of avoiding greed, sloth, pornography, being honest in all of your dealings, and included three sentences about marriage and sexuality, that marriage was intended to be between a man and a woman, that any sexual activity outside of that marriage is a sin, and then they also added a statement encouraging individuals to embrace their God-given gender. So we resubmitted the constitution with those sentences and were surprised to get a letter back that said, "Your statement of faith on its face is discriminatory, and you must revise your standards for selecting leaders if you want to remain on campus."
We appealed that decision to the Dean of Students, who concurred and wrote a letter that basically repeated the initial ruling and said, "Your statement of belief is discriminatory on its face." BLinC had to change its leadership standards to be readmitted to campus, and then also said, "And this is the first time you've raised that there was a religious conflict, and so I'm not going to consider that argument." So this despite the fact that we'd sent multiple letters, that Hannah Thompson during the investigation had repeatedly emphasized the nature of -- or the reason for the denial of a leadership position.
So we brought a lawsuit bringing a free speech claim, alleging viewpoint discrimination. We brought Free Exercise claims alleging that the university's policy was not neutral and not generally applicable, and we brought administerial exception claim under Hosanna-Tabor, arguing that the university had no ability to interfere in our group's leadership selection. And there are other state law claims and related claims that we brought as well.
We sought a preliminary injunction. At the hearing, the judge indicated that she was not particularly friendly to our client's religious views and asked a lot of questions like, "Well, don't your clients know that if someone's transgender, that's who they are? Don't they know that if you're gay, that's who you are?" And we had to respond, "We're not questioning who anybody is or their decisions, we're just asking that BLinC be allowed, like every other group on campus, to select leaders who actually share the group's beliefs or mission."
Ultimately, we prevailed with the judge, but only in getting a 90-day injunction. And the judge was basically troubled that there were other groups on campus, and she particularly highlighted a group called Imam Mahdi which is a Muslim student organization and said, "Well, they have a requirement in their constitution that their leaders must be Muslim, and in fact, their members are required also to be Muslim." And the judge said, "So I will give the university 90 days to clean up their policy," essentially suggesting that they should go on and kick off Imam Mahdi as well.
So we had the 90 days. The university commenced a clean-up effort of sorts. It claimed to be reviewing all 580 student constitutions for the groups that were on campus at that time, and initially sent a letter to all groups saying, "You must include the full and current language of our human rights policy," because only 100 and some of the student groups actually even had the human rights policy in their constitution, even though that was in the procedures for becoming a registered student organization, that was a requirement. So over 300 groups were out of compliance with that. And so they sent letters saying, "Everybody get this into your constitution."
And then there were a few groups who got letters saying, "Also, you have language in your constitution that is inconsistent with the human rights policy, and therefore, you must remove that language." One of those groups was the InterVarsity Christian Fellowship, IVCF, graduate student group, and they were told -- they had language that just required their leaders to be Christian generally. The university said, "You'll have to remove that language." And the student leaders, who also eventually became our clients, wrote back and said, "Well, it's very important for us to have Christian leaders. Can we at least encourage students to be -- our leaders to be Christian?" And the university wrote back and said, "No. You cannot even encourage your leaders to support your Christian values."
Last summer, in the summer of 2018 after this clean-up effort, the university announced that it had -- was kicking 38 other groups off campus, including Iman Mahdi, Seek Awareness, the Latter-day Saint Student Association, a handful of other religious groups, and some non-religious groups. But as we delved into the reasons for the dismissal, it turned out that most of those groups were only kicked off campus because they hadn't responded on very short timeline that the university had given to the request to add in the nondiscrimination language. And as those student groups eventually got back to the university and agreed to add the language to their constitutions, they were admitted back on campus.
And an interesting note -- one of the internal documents showed that for this clean-up process, the university had instructed the reviewers of these 580 constitutions to look for any language that required leaders or members to ascribe to the beliefs of the organization if those beliefs were impacted by the human rights policy. So if you took that on face value, they were suggesting that if you have beliefs about sex—so feminist groups, or any groups promoting women in science or whatever—that those groups would all, just because of their belief requirement, would have been kicked off campus.
Ultimately, we filed motions for summary judgement. We had sued both the university and the three officers, the President of the Student Union, the Associate Dean, and the Dean of Students. And we sued them in their personal capacities because we believed that the violation was so obvious that it was important to send a message to university officials that even with CLS v. Martinez on the book, this kind of discriminatory application of the nondiscrimination policy was forbidden. So we moved for summary judgement against all defendants. The university moved for summary judgement just on behalf of the individual defendants, asserting qualified immunity on their behalf.
The other interesting development was that in this process, at the end of the clean-up procedure, the university amended its nondiscrimination policy. The policy is the standard one, includes all the things you would normally expect. It also has a prohibition against creed discrimination in addition to religious discrimination, sexual orientation, gender identity, service in the military, and status as a veteran, so those additional categories in addition to the ones you would normally expect. Just before the hearing, the judge sent an email saying -- well, let me finish this idea that they amended the nondiscrimination policy. So after the prohibition against sex discrimination, they added language that said, "unless allowed by Title IX." And the university's position was, "Well, Title IX allows universities to maintain fraternities and sororities that are sex segregated, sports teams that are sex segregated, and so we're going to allow student groups that same leeway." And we responded that Title IX also has religious exemptions, that religious institutions aren't subject to Title IX to the extent its application would violate their religious tenets. And the university said, "Well, we're not going to extend that to the religious student groups. Only the fraternities and the sports teams are going to get the Title IX exemption."
So just before the hearing, the judge asked -- she wrote to us and said, "To the extent that you're going to argue that there is a discriminatory application of the policy, I don't want to hear any arguments about fraternities and sports teams." So she took that off the table for us, or against us, I should say. And then she said, "I'd also like you to submit the names of all of your student members," which to us -- we were shocked that she would ask that considering the First Amendment right of organizations to maintain their membership list confidential, and also just wondering why she possibly wanted to know that. Now, she also asked the university why it was allowing certain other groups, not the fraternities and sports clubs, but other groups to remain on campus.
One of the most blatant examples that she called out in the email was that Marcus Miller, after being denied a leadership position, had started his own group called Love Works, which was a Christian organization that's gay affirming and that also requires its leaders to sign a statement of faith that they support the Christian beliefs and the gay affirming nature of that organization. And we had argued extensively about this issue in the briefs. The university directly said, "Yes, we do allow some groups to stay on campus, despite their seeming violation of the human rights policy because they provide safe space for groups that have historically suffered discrimination." And they distinguished Love Works from BLinC in their reply brief by saying on their motion for summary judgement, saying that, "Well, BLinC just wants a pass to discriminate." They repeatedly called our students out as wanting a pass for religious groups to discriminate, to violate the will of the people of Iowa, really using language that suggested that our clients were just invidious discriminators, and then said Love Works is different because they accept everyone, and they don't have any restrictions on conduct, and so forth.
So the judge specifically asked them to explain that distinction. So we protested. We wrote an email back to the judge saying, "Could you let us know the reasons for this information, why you need to know our client's members?" We asserted the First Amendment concerns, and she wrote back and said, "Well, the university's policies require student groups to have at least five members to be a student group, and if you've fallen below that threshold, then I don't think you have a case, and I'm not going to rule on it." No, let me correct that. She just said, "I want to make sure you still have a viable group." She didn't explain the details about the five and so forth. She just said, "I want to make sure you have a viable group. I want to know if any of your members are also members of InterVarsity," suggesting that she was concerned that they were maybe in this together, or conspiring together, I don't know, "and I want to make sure that they're all university students." So we had -- our clients wrote a -- the current president which had changed once again, the new president wrote a declaration stating that they had always had 10 to 12 people participating, that they had at least around 5 members, and that none of them were members of both BLinC and IVCF, and that they were all students of the university, which we thought resolved the judge's concerns.
The university, in response to the email, submitted a list of all 580 organizations on campus and noted whether they were actively registered and on campus, whether they were still on -- whether they were only on pending the litigation, or if there were other reasons. And the list had five or six groups that had dissolved because there were no students running them any longer, or for various reasons, they had decided not to reactivate. Every other group said -- the university just marked that they were, yes, registered on campus, except for 32 organizations that were listed as registered only pending the litigation. All 32 of those organizations were religious organizations, and every religious organization on campus was on the list except one, and that was Love Works, which was marked as, yes, registered without any caveats.
So at the hearing -- we ended up doing it over a phone. It was the week that Iowa was -- there were those freezing temperatures in Iowa. They had shut down the university, shut down the court for a couple of days, including the day we were supposed to have the hearing, so the judge had rescheduled it for a telephonic hearing a couple of days later. At the hearing, about halfway through my argument, the judge just interrupted and said, "Mr. Baxter, you never submitted the names of your leaders," -- I'm sorry, -- "the names of your members." And I said, "Oh, well, we did submit the declaration of our client that resolved the concerns you had raised." And she said, "No, you never submitted the names." And that's when she said, "If you don't have five members, I'm not going to -- you don't have a case and this whole case has been mooted," which I think was wrong anyway, even if we had fallen below five.
But I said, "Look, we said that our client mentioned that there were around five, at least around five members," which had just been kind of a random number that we'd thrown in without going through the specifics of going back through the rules. They have a little bit of complicated rules for who becomes a member, and we hadn't gone back and made them pull all of their sign-in sheets and actually counted. It's nothing they really care about until the elections, and then they usually just know who's been there enough to be a member. And she said, "No, your declaration is not specific enough. I need to know exactly who the names are because I want to assess whether you still have a live case." So we said, "Well, considering the First Amendment concern,"—this is just after the Covington school kids issue had happened with all the doxing there—we said, "We'd really request that we be allowed to submit these names under CO for attorneys' eyes only," which she granted would be reasonable. And so we agreed that we would submit that early the next week.
During the university's argument, she continually pressed counsel about the differing application of the policy, why some groups were allowed to remain on campus, and why in particular Love Works? And he kept defending it until she finally said, "If this isn't viewpoint discrimination, tell me what is." And he tried to make an argument, and she said, "Well, Love Works is on without any -- it's on for good. You haven't indicated it's pending litigation, and all these other religious groups are only on pending the outcome of this lawsuit." And he said, "Oh, that was a mistake. Love Works actually should have been on the pending litigation list," which, as you can imagine, was absolutely infuriating that we had spent a year and a half arguing about this specific issue and repeatedly raising the issue of Love Works as evidence of the discrimination. The university defended it in its briefing.
And so fortunately, the judge said, "You know, you've already made admissions about this in the statements of material fact. I'm not going to allow you to reopen the record now." And opposing counsel protested and said, "Well, you just reopened the record to allow Mr. Baxter to submit the names of his students, and so I think I have the right to also amend the record to correct this." And she said, "Well, I think there's a difference. I've just asked them to do that. For the life of me," she said, "I can't understand why the university never challenged or found out how many members they currently have." So she allowed us to submit the declaration and didn't allow opposing counsel. But it shows kind of the attitude of the judge toward this case. She clearly, from the very first preliminary injunction hearing, was not friendly toward our client's religious views. She was looking for a way to not resolve the case if she could to the point of raising arguments that the university hadn't even raised. And we were able to submit a declaration, and we had at least eight members who had been attending regularly this year, so that turned out not to be a problem.
The judge issued a ruling, I guess it's been a couple weeks ago now, and ruled in our favor on the free speech clause that there was clear viewpoint discrimination. And to her credit, she went beyond the Love Works and said also, "You can't have other kinds of political, social, cultural groups that are allowed to select their leaders based on their beliefs and deny the same to religious leaders," which was a great way for her to go. She also in the Free Exercise Clause ruled in our favor. On the ministerial exception claims, she said ministerial exception doesn't apply in this context because she had some odd distinction that this isn't really about an internal dispute, even though it was leaders telling the member he couldn't become a leader. In her mind, she distinguished it from the Hosanna-Tabor case and said, "Plus, you know, you're on campus in this limited public forum. I don't think the ministerial exception applies."
So overall, a very good outcome. She did rule against us on the issue of damages against the individual defendants, saying this is a complicated issue. At the argument, opposing counsel had said, "Even the Supreme Court doesn't know what it's doing on these issues. How can university officials know what they're supposed to do?", which is complete bunk, considering that even in CLS v. Martinez, the Court said viewpoint discrimination is the very basic requirement. You can't -- CLS v. Martinez only survived because there was allegedly the same rule being applied evenly to every group. So even just looking at CLS v. Martinez, in our view, it's exceptionally clear that what the university officials were doing was a violation of the Constitution, and she should have found them personally liable. And we weren't even asking for real damages. We just had claims for nominal damages against them, but that was also an area where she ruled against us.
So the parties have, just this week, or I guess last week, been working on cleaning up the remaining claims, getting rid of the state claims, taking care of some technicalities to clean up the issue to determine -- to make sure that we have the final judgement so that appeals can be taken from that.
So a very significant case. I think it's -- I didn't get into some of the discovery issues that are really interesting. We had one of the university officials -- it was telling to me just how much some of these university officials swim in their water so much that they really have no concept of the other side's arguments or what issues they're creating when they try to come in and protect, in this case, individuals based on their sexual orientation which is what they claim to be trying to do.
And an example -- the head of the student union, when we deposed him, we said -- we had questions like, "Can students come on campus and express their views?" "Yes, of course. That's protected by the First Amendment." "Can they join with other students and express their views on campus?" "Yes." "Can they form groups to express their views on campus?" "Yes." "Can those groups be registered by the university?" "Yes." And then I said, "So can those groups write their views in their constitution?" And all of a sudden, it was like the lightbulbs went off on his head and he realized, Oh, wait, I've just walked down this path, and so he said, "No." "So you can express your views on campus, you can express them in groups, you can form organizations, those organizations can be recognized on campus, but they can't write their views in their constitution?" So after we walked him through that a couple of times, he eventually admitted, "Okay, that would be a violation of the First Amendment."
So we walked him through the three sentences on marriage and sexuality, and by this point he was already catching on a little bit. We said, "Is there anything wrong with expressing a view about marriage in your constitution?" "No." "Is there anything wrong with expressing a view about sexuality in your constitution? Does that violate the human rights policy?" "No." "Well, what about expressing religious views about gender identity?" And again, it was kind of like a deer in the headlights look, and he's like, "Yes, that would be a violation of the human rights policy." "Okay, well, help me understand that." So we walk him through it again, and eventually he admitted, "Okay, it's okay to have all those things in your constitution."
So then we said, "If our clients would have just agreed to delete those three sentences on marriage and sexuality, would you have readmitted them onto campus?" And at that point, he literally waited for about a minute and just broke into a sweat, and he said, "I need to take a break before I answer that question." I said, "I'm happy to give you a break, but you have to answer the question first. If our clients would have just deleted these three statements on marriage and sexuality, would you have readmitted them?" And he said, "This is causing me extreme emotional stress. I need a break." And I said, "You can have a break after you answer the question. Would you have admitted them if they would have deleted those three sentences?" And he said, "Yes." And he stood up, and he walked out of the room. It was astounding, first of all, that his counsel had allowed him to come into a deposition without any preparation, but even more astounding that he just hadn't thought through, clearly hadn't thought through what the implications of what he was doing.
The two other officials, the Associate Dean of Students and the Dean of Students both admitted that they had red flags about what they were doing, but they decided to defer to the investigator's conclusions. The Associate Dean of Students said he had no problem with standards of conduct regarding sex and marriage as long as you defined marriage to include same-sex marriage, so he would have been fine if they had just said no sex outside of marriage, period, but once they defined marriage as between a man and a woman, then he felt that that was a problem. So clear, again, differential treatment based on this specific religious view.
The Dean of Students said, when we walked her though the factual situation, she basically admitted that she hadn't looked at any of the underlying papers, even though she was the last person to appeal. She agreed it was important for her to carefully review the facts to make sure that the appeal was fair. She hadn't reviewed any of the underlying documents. She deferred to the investigator. She had red flags about this being a First Amendment violation but decided not to do anything about it. And she admitted that she was flat out wrong, that it was a false statement in her letter to say that our clients had never raised this as a religious conflict.
So in every respect, this just could not have been a more blatant violation of the Constitution. And the university, clearly, when you read their briefs and their justifications, they were clearly turning back consistently to the CLS v. Martinez case and Justice Ginsburg's reasoning to argue that, "Oh, well, we're not really forcing them off campus, we're just refusing to subsidize them. We're just trying to uphold the will of the people of Iowa," even though the Iowa Civil Rights Act has religious exemptions in it. They looked at Justice Stevens's concurrence, basically looking at every piece of CLS v. Martinez that they could to try to make the conclusion in that case and the analysis in that case fit the facts of the BLinC v. U Iowa case. So it's important -- this decision that came out was an important way to cabin the CLS v. Martinez case, but ultimately, it's going to be very important for the Supreme Court to reverse or strike down the CLS v. Martinez reasoning, which is really flawed in many respects in this idea that just because you go on campus, the university can somehow start imposing policies that prohibit you from forming groups and selecting leaders who embrace your views and missions.
So we're very happy about the outcome of this case. It's a good decision in most respects. There are some flaws, but it does set down some wonderful markers. But unfortunately, this case is not likely to be a great vehicle for completely overturning Martinez because the facts were so blatant and there's such clear viewpoint discrimination, but we do think it's important that either this case or another case is used to ultimately reverse and overturn the 2010 decision in CLS v. Martinez. And so we're hopeful that this will be a first step in that direction. So thank you for listening. If you have any questions, I'd be happy to address them.
Wesley Hodges: Wonderful. Well, thank you so much for that very thorough analysis and just sharing the story, Eric. We do have quite a large audience today, so do expect several questions from our audience. In the meantime, while we wait for anyone to jump in, Eric, I do want to ask you a question myself. Could you take a moment and explain just if there are any other cases or cases that are good to follow up on this case that you see on the horizon?
Eric Baxter: There's been a number of -- this issue has arisen on a number of campuses across the country. So our InterVarsity case against the University of Iowa is still pending. I think it's likely it will be resolved on the same grounds the BLinC case was, but there's a possibility that we could go through discovery. The judge, in her opinion, seemed to be suggesting that if -- in fact, she went out of her way to talk about how important and good nondiscrimination policies are, and said this injunction allowing BLinC back on campus is only good as long as the university continues to apply the policy the way it is applying it, but if it were to apply it more evenly, that that would be a different question. So it's very possible, considering how the university has continuously tried to adjust the facts that they could go ahead and say, "Oh, we're going to actually now apply this against a larger subset of groups." She suggested that she doesn't care about the fraternities and sports teams, so one way they could respond would be to say, "Well, we're just going to apply this more evenly to everybody."
Most of the groups that still have leadership standards would probably remove them and just find other ways to screen who they select as leaders. And then you would have the case that was just involving the exemption for fraternities and sororities and sports teams, which could present a great vehicle for going forward.
A lot of the other universities have tended to back down under pressure when the lawyers get involved, and then the universities back down or they've found some way to compromise, but we anticipate -- but there are a number of schools that are in the early stages of this issue. We think some of them will probably press forward, especially in the Ninth Circuit, and that that could help create additional vehicles for going to the Supreme Court.
Wesley Hodges: Thank you, Eric, for that context. It does look like we do have one question from the audience. Let's go ahead and move to our first caller.
Caller 1: Yeah, my wife's a University of Iowa graduate, and we make fairly significant contributions every year. And I'm sort of concerned. Do you get the impression that they're chastised by this judge's order and that they're actually going to be more open to religious viewpoints, or do you think there's an internal resistance that's going to continue even past this one case?
Eric Baxter: I think there's an internal resistance. They may give up the fight for the near future, but I don't think the message has gone all the way up. I do know that there were a number of alumni who expressed concern and put some pressure on the university. There are a couple of members of the Board of Regents who have expressed concern, but I don't think that the issue has really gotten beyond the general counsel's office where this is really being controlled. We've heard that the general counsel has really strong views about this issue and that's she's determined to, I guess, try to push off campus groups that have standards, especially if they're based on sexual orientation and gender identity. And so we're strongly in favor of alumni reaching out to the president's office, to the Board of Regents, and putting further pressure on the university.
The state legislature's also taken up the issue. They took it up last year, but then didn't get it out of committee. This year, it's gotten out of committee already, is my understanding, and could come up for a floor vote enacting legislation that would protect student groups on campus, although I'm not sure the language will be as strong as we would like it to be.
Caller 1: Who is general counsel?
Eric Baxter: You know, I said that, and I've forgotten her name at the moment. But I'm sure it's available on --
Caller 1: -- It's okay. I can look it up. Thank you very much.
Wesley Hodges: Thank you, caller.
Eric Baxter: One of the university's positions was that there was this grand conflict here between constitutional rights, and we had to really try to clarify for the court that there was no conflict here. Even assuming that there are certain rights that inure to people based on their sexual orientation or gender identity, they weren't in conflict here. BLinC admits anyone to be a member of its group, and there's no known right for groups or for individuals to force themselves into leadership of groups. Conversely, there's a clear constitutional right for organizations to select leaders who share their beliefs. And BLinC never indicated that it would -- in fact, it stated that it would not exclude anyone based on their sexual orientation or gender identity. It would only exclude based on beliefs. And so there's no right for anyone to force themselves into a leadership position despite having views that are contrary to the organization. So I think that's important to distinguish to continue to maintain. This was not even really a status based issue, and the university admitted all along that its policy was only intended to prohibit status based discrimination, not to regulate based on belief.
Wesley Hodges: Thank you, Eric. Looks like we do have two more questions in the queue. Let's go ahead and move to our next caller.
Caller 2: Eric, can you explain -- it's a two-part question. Can you explain the strategy behind seeking to have this appealed immediately rather than finishing the litigation in the trial court? And the second part of the question is I don't know if Iowa has a state RIFRA, but if it does, or in a state that does, would a state RIFRA claim be a viable avenue to deal with this issue?
Eric Baxter: Yeah, great question. So in this case, we've already done thorough -- on your first question, we've already done extensive discovery, have a very clear record that's mostly uncontested of like 460-some statements of material fact. The university conceded almost all of them, including statements that it allowed certain of these other groups to be on campus despite also being in violation of the human rights policy if the standard were applied evenly. And so the only claims that are -- and all those were decided -- so the claims were all decided as a matter of law.
The other outstanding claims were just parallel state law claims, and there's really no further factual development to be made in any of those cases, so we feel like we already have a good record and there's no need to -- there's really nothing to do on those other claims. We could have, I guess, moved for summary judgement on the remaining claims, but we had the ruling we needed on the federal claims.
The Iowa State RIFRA -- there is no Iowa State RIFRA. If there had been, yes, we think there would be -- presumably, that would have been a good way to address this issue.
Wesley Hodges: Thank you so much, caller. We do have another question in the queue. Let's go ahead and move to our next caller.
Caller 3: Hi, Eric. I was wondering if you could briefly summarize where cases like this are, if they're going to make it up to the federal circuit courts or potentially the Supreme Court and raise the CLS v. Martinez issue before the Supreme Court?
Eric Baxter: Yeah, so right now, as far as I know, it's just the BLinC case which has potential to go up to the, in this case, the Eighth Circuit. Our case on behalf of IVCF also has potential to follow up to the court of appeals. There are a couple of cases in Colorado. ADF filed a case last month or earlier this month. I'm not sure how far that case will go. I've heard some rumblings that the university is backing down, although I don't really have direct information on that. There are cases, again, in California where the parties -- California in the Ninth Circuit, one in Washington, where the groups and the university are still in negotiation, so it's unclear whether those will go up, or go to trial, or go into a full legal proceeding.
Those are the ones that I'm aware of right now. There have been many, many issues in the recent past that have mostly resolved one way or another, and there are a number of schools that have policies out there but just haven't come to a conflict yet. So basically, I think BLinC and IVCF cases are the only two that have immediate potential to go up on appeal.
Wesley Hodges: Excellent. Well, thank you so much for your question, caller. Seeing no immediate questions from the audience, Eric, do you have any closing thoughts for us on this case, any thoughts you want to go into more deeply before we end today?
Eric Baxter: Yeah, just in closing, I would just say again that I think this is an extremely important issue. The CLS v. Martinez decision is far off base. I'm not even sure how much of it survives Trinity Lutheran where the Court made clear that religious organizations cannot be excluded from government programs. And both CLS v. Martinez and this case have had significant evidence that the real intent and purpose of the policy was to drive certain religious groups off campus. And so there's movement, I think, potential movement by the Court away from CLS v. Martinez, and we hope that as these cases develop that the Court will eventually overturn that decision.
Wesley Hodges: Wonderful. Well, Eric, thank you so much for spending your time with us today. On behalf of The Federalist Society, I would like to thank you for the benefit of your valuable time and expertise. We welcome all listener feedback by email at email@example.com. Thank you all for joining today. This call is now adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.