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The Supreme Court heard yesterday in , the highly anticipated case concerning whether student organizations have a First Amendment right to exclude those who disagree with their beliefs from voting membership and leadership positions. The oral argument grappled with the tension between students' freedom of association and a public university's desire to create a forum where students do not discriminate on the basis of status or belief.

These weighty issues inspired college and law students to camp out in line with in order to attend the argument, due to the Supreme Court's policy of admitting members of the public on a first-come, first-served basis. The first people in line, ten Eastern University students who had conducted a simulation of the case in an undergraduate class, arrived at noon on the Sunday before Monday's argument. These students began a long line of eager attendees, many of whom arrived well before sunrise and spent the night in sleeping bags and on folding chairs.

For the 50 members of the public admitted from the line, all of whom arrived before 3:00 am on Monday, the argument did not disappoint. Because I arrived at 3:45 am and was 52nd in line, however, I was unable to see the argument, but the six hours I spent waiting in line was enriched by thoughtful insights about the case by those around me. (At left, I am pictured in line at around 6:00 am.)

Most of the coverage of the argument—including an article by Dahlia Lithwick at , the commentators collected on , and a comprehensive summary by the —focused on the divisive nature of the case. Journalists noted what they perceived to be the transparency of the Justices' political biases. However, the oral argument transcript evidences several issues that unified the Court and reflected a nonpartisan concern with the fundamental values at stake.

First, most Justices shared a frustration with the absence of a developed factual record. Due to inconsistencies in the lawyers' positions, the Justices were unsure whether Hastings College of the Law was implementing an "all-comers policy," which would require all student groups to accept anyone who wished to join, or a more narrow "non-discrimination policy," which forbids student groups from discriminating on the basis of race, gender, sexual orientation, and religious belief. While both are problematic, there is a higher probability that the court would find that the latter policy unfairly burdens certain religious groups since it would allow, for example, the environmentalist club to exclude those who believe in expanding the use of nuclear power, while restricting a religious group from similarly excluding others on the basis of belief. Justice Breyer summarized the Justices' concerns when he asked, "So with that great unclarity, asked to decide a constitutional issue where I feel I need more facts and I don't have them ... what should I do?" If this sentiment carries the day, the Court might dismiss the case in order for lower courts to further develop the facts. This result is made more likely by the fact that Justice Kennedy, a swing vote, also commented that the factual disputes detracted from the "fundamental questions" in this case.

Another issue that both liberal and conservative Justices found problematic was the concern that Hastings was applying its "all-comers policy" pretextually and only against certain groups. Justice Sotomayor noted that La Raza, another student group, limited its membership "to people of Hispanic descent." Justice Scalia garnered a laugh when he opined on the absurdity of forcing all organizations to admit members hostile to their mission. According to Justice Scalia:

Frankly, one reason why I am inclined to think this is pretextual it is so weird to require the - the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy.

Many of the Justices also noted the potential for "hostile take-overs," in which student groups holding minority views might be overrun by members trying to subvert the group's mission. For instance, Justice Alito posed a hypothetical situation where "at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?" FIREaddressed this issue in our amici brief, arguing that the potential for hostile take-overs deprives student groups with unpopular views of their right to expressive association.

The Court also grappled with the distinction between invidious discrimination on the basis of status (race, gender, sexual orientation) and the right to form groups on the basis of belief, which FIREasserts is the cornerstone of freedom of association. According to Chief Justice Roberts:

[G]ender or race is fundamentally different from religious [belief]. Gender and race is a status. Religious belief, it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we have always regarded that as a good thing. That type of exclusion is supported in - in the Constitution. The other types of exclusion are not.

Both the audience turnout and the nature of this oral argument reflected the importance of this case for students, and for all citizens. Perhaps the liberal-leaning Justices were more concerned with a university's ability to prohibit discrimination, and the conservative-leaning Justices were more concerned with the burdens on religious student groups. Despite their partisan leanings, all of the Justices wanted to ensure that Hastings is not treating some student groups differently than others. And it was inspiring to see so many students shivering through a long night because they care so much about these issues. Both the oral argument and the intense interest it generated should therefore give pause to the cynics among us.