The court held in a 5-4 decision that the school did not violate CLS's rights because the "all-comers" policy applied equally to everybody. CLS, if it wanted to be recognized on campus, would have to abide by the "all-comers" policy and admit gay students — or anybody else — who did not share the society's core beliefs.
"It was a ruling that didn't bear any resemblance to what was actually occurring on the University of California at Hastings campus," said Frederick Mark Gedicks, another professor at BYU's law school. "What you really want to know is can the university apply a different rule to the Christian Legal Society than they apply to every other student society. And if that is what Hasting was trying to do, I would have said that is outrageous. If you want to let students discriminate on the basis of various factors because those factors define the essence of their organization, then you must let religious organizations discriminate too. So it is all or nothing. Everybody gets to discriminate or nobody gets to discriminate."
Adam Kissel, who is vice president of programs at FIRE, thinks it is too early to see the full impact of what the case is going to mean across campuses: "The decision came out probably too late last year for universities who wanted to implement an 'all-comers' policy to change up their student handbook in time for the fall."
Scharffs said, "Most universities just want to have a policy that will prevent them from being sued."
He said the case gives momentum to the policy because if a university puts an "all-comers" policy into place it could make them "judgment proof."
Lukianoff, however, thinks that an "all-comers" policy has its own problems. It may work for intramural sports, but falls down when you try to apply it to ideological groups. "I can't imagine it working in any other way than just being a total nightmare for every administrator on a campus. And I think that is one of the reasons you haven't seen them pop up too much," Lukinoff said. "You would have situations where the Republicans would show up at the College Democrats meetings just trying to find out what their strategy is for the year and then say, 'Hey, you can't kick me out. You have to accept everybody,' It will turn it into a complete free-for-all."
From case records, it appears that very few public universities probably less than 20 had an "all-comers" policy in place when the case was decided. The question is will other schools follow suit? Universities will have to balance their desires to use an "all-comers" policy to enforce nondiscrimination guidelines with the possibility, expressed by Justice Antonin Scalia during oral arguments, that it will allow "atheists not just to join (Christian groups), but to conduct Bible classes."
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