9th Circuit: Christian Legal Society Failed To Preserve Pretext Argument For Review

Last June in Christian Legal Society v. Martinez, the U.S. Supreme Court upheld Hastings Law School's policy of only recognizing student groups that are open to all students. The policy was challenged by CLS that required its members and officers to sign a statement of faith. (See prior posting.)  However the Supreme Court remanded the case to the 9th Circuit, saying that, "if and to the extent it is preserved," the Circuit Court could still consider CLS's argument that Hastings applied its all-comers rule in a biased fashion, using it as a pretext for religious discrimination. In Christian Legal Society of University of California Hastings v. Wu, (9th Cir., Nov.17, 2010), the 9th Circuit held on remand that plaintiffs had failed to preserve this selective application argument for appeal. The Washington Post reports on the decision. [Thanks to Religion News Service for the lead.]