The Center for Law & Religious Freedom

Basics on the Martinez Decision

Here are some basics about the Martinez decision:

1. The decision does not require a university to do anything; it merely allows a university to adopt an "all comers policy," IF it chooses to do so and IF it applies that policy to every other student group uniformly, without exception.

2. Because the decision does not require universities to do anything and only applies to an unusual type of "all comers policy," it is a very narrow decision.  An influential publication for college administrators has run several articles about the narrowness of the decision, which is a helpful resource to provide to college administrators.  Here are two links to articles from the Chronicle of Higher Education.

3. The decision is narrow because it only protects a university choosing to implement an "ALL COMERS POLICY"; it does not apply to a traditional enumerated "NONDISCRIMINATION POLICY" (i.e., the normal policy that prohibits discrimination on the basis of "race, ethnicity, sex, age, etc."). This distinction between a normal nondiscrimination policy and an all comers policy is critical to understand.

4. Most universities have an enumerated nondiscrimination policy and do NOT have an "all comers policy," so most universities' policies are not protected by the Martinez decision.

5. Even if a university claims to have an all-comers policy, it most likely does not have the type of all-comers policy protected by the Martinez decision. That is, an all comers policy that requires all groups to be open to attendance by all students is not a problem for CLS.  CLS always welcomes all students to any of its activities and meetings.  The type of all-comers policy that is problematic for CLS is one that claims not to allow groups to require their leaders to agree with their beliefs or mission, whatever they may be.  Some schools have the former kind of all comers policy (requiring attendance to be open to all), but very few have the latter kind (requiring all groups to permit students who do not agree with their beliefs or mission to lead the groups).  IF YOUR LAW SCHOOL IS CONSIDERING AN "ALL-COMERS" POLICY, SPEAK UP.  Click here for reasons that such a policy is unwise.

6.  Even if a university has an all comers policy that requires groups to open their leadership to students who disagree with their mission, the university must apply the policy uniformly to all groups, without exception, which is unlikely to happen.

7.  For a summary of the decision, here is our fact sheet and a summary of the Alito dissent.

8.  The decision has been soundly criticized by liberals who are not pro-Christian but are pro-free speech.  Two of those articles are found here (Huffington Post) and here (Stanley Fish on NYT Blog).    Dean Joan Howarth of Michigan State College of Law authored an outstanding article before the Martinez decision that demonstrated why homosexual student groups should support CLS's right to require its officers to agree with its religious beliefs.

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