SALT LAKE CITY — Michael McConnell would just as soon forget Monday morning.
After more than two months of waiting, McConnell — the former University of Utah law professor and 10th Circuit federal appellate judge — received word early Monday that the Supreme Court had ruled 5-4 against his client, petitioner Christian Legal Society, in Christian Legal Society vs. Martinez.
The case marked McConnell's 12th time before the high court.
"You never get used to (the waiting)," he said Monday. "I was certainly on pins and needles waiting for the decision, especially this morning. And now I'm quite disappointed that the court did not address more of our arguments."
In representing Christian Legal Society, McConnell argued that Hastings (Calif.) College of the Law violated First Amendment freedom of religion protections by choosing to withhold its official recognition from CLS because the Christian organization requires prospective members to endorse a form committing signees to live by basic Christian principles. Hastings countered that requiring students to sign such a statement is a violation of the law school's nondiscrimination policy because it effectively excludes gay students from becoming voting members of CLS.
"The decision does not actually resolve very much," McConnell said. The court only decided the abstract question about whether the Hastings policy could be constitutional. It did not address the argument that (the Hastings policy) was not applied in a neutral fashion."
Now that the Supreme Court has deemed the Hastings nondiscrimination policy constitutional, the case is remanded back to the 9th Circuit for an examination of whether Hastings applied its policy consistently to all student organizations.
McConnell, who currently heads Stanford's Constitutional Law Center, said he agrees completely with the dissent penned by Justice Samuel Alito and joined by Chief Justice John Roberts, Justice Clarence Thomas and Justice Antonin Scalia.
"I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country," Alito wrote.