CLS Argument and the Religion of the Justices

I think an exchange in the CLS oral argument is relevant to a topic we have discussed in recent weeks—the value of judges from different religious backgrounds. During the argument, Justice Breyer, one of two Jewish justices, pressed Hastings attorney Gregory Garre on whether the Hastings non-discrimination policy would allow an Orthodox Jewish Club that separated men and women.  Garre ultimately admitted that it would not.  The exchange (which went on longer than almost any other in the argument) is included below. It starts with a question about Orthodox religious services, but develops into a discussion about Orthodox clubs. Justice Breyer is not Orthodox, but maybe there are Orthodox members of his family.  Maybe it took a Jewish justice to be sensitive to this issue.

JUSTICE BREYER: Hastings, let’s say, or Berkeley has four or five or six different religious chapels for services on Sunday or Saturday, and they say we are open to all branches of religion, orthodox Jews, conservative, and reformed. And then the orthodox say we want men and women to sit separately. Now, can Hastings say or Berkeley, no, we will let the reform come, we will let the conservatives come, but not the — not the orthodox Jews. They can’t have their service. Would — would that be constitutional?

MR. GARRE: Your Honor, I think it would be a much different case.

JUSTICE BREYER: But what is your opinion?

MR. GARRE: I — I think if the school is regulating outside of the purposes of a limited forum, public forum for recognized groups, then I doubt it could go in –

JUSTICE BREYER: So if, in fact, the -the — the — they have clubs and they are not services, and what they do is they discuss — they discuss the -the — the nature of the service, and there can they have separate discussions –

MR. GARRE: Where — where –

JUSTICE BREYER: — men from — men and women?

MR. GARRE: Where the rule operates on a viewpoint neutral basis. Here what the — the school is doing, is it is publicly subsidizing –

JUSTICE BREYER: I guess your answer to that is that the orthodox Jews cannot? They cannot have separate women’s groups in their organization, which is an after school religious organization.

MR. GARRE: They can exist separately –

JUSTICE BREYER: Outside of the university, et cetera.

MR. GARRE: In fact, Your Honor, it’s not –-

JUSTICE BREYER: That’s their problem here.

MR. GARRE: — unusual for schools to have all male or all women clubs. These are not recognized parts of the community. These — these are activities that are subsidized by the students themselves for the mandatory student activity.

JUSTICE BREYER: And their reason to put in a sentence as to why they don’t want these orthodox Jews to meet separately on the campus, men in one group and women in another, and discuss the religious service, they want none like that, and their reason for wanting none like that is?

MR. GARRE: Well, I think that’s a much different example in this case.

JUSTICE BREYER: I’m trying to make it as close as possible.

MR. GARRE: Well, I — I may have misunderstood the hypothetical. I mean, I think it’s much different –

JUSTICE BREYER: They have a small orthodox club.

MR. GARRE: The reason why the school has a policy that all groups that it subsidizes must admit all-comers is that, number one, it ensures that all students enjoy equal access to all school subsidized and school recognized activities. Number two, it avoids the line drawing problems that we have discussed early this morning I think are necessarily arise and also create strife in small educational communities.

[Counsel was then cut off and moved to a different topic.]