Defining Religion Down: Hasanna-Tabor, Martinez, and the U.S. Supreme Court

Authors

Carl H. Esbeck, University of Missouri School of LawFollow

Document Type

Article

Publication Date

Fall 2012

Abstract

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech not acts. Requiring members to sign a statement of faith was an act, but an act professing religious beliefs.

Recommended Citation

Carl H. Esbeck, Defining Religion Down:Hosanna-Tabor, Martinez, and the U.S. Supreme Court, 11 First Amend. L. Rev. 1 (2012)