Reed

Opinion by Judge PREGERSON; Concurrence by Judge RIPPLE.

OPINION

The Supreme Court held in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. *795 Martinez that a public law school does not violate the Constitution when it “condition[s] its official recognition of a student group — and the attendant use of school funds and facilities — on the organization’s agreement to open eligibility for membership and leadership to all students.” — U.S. -, 130 S.Ct. 2971 , 2978, 177 L.Ed.2d 838 (2010). The Court referred to the open membership requirement as an “all-comers policy” and concluded that such a policy was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Id. The Court further held that the all-comers policy did not violate the Free Exercise Clause of the First Amendment. Id. at 2995 n. 27.

The Court expressly declined to address whether these holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, and sexual orientation. See id. at…

concurring:

I concur in the judgment because faithful adherence to the doctrines of stare decisis and precedent requires me to do so. I write separately because this case presents an important issue of First Amendment jurisprudence, which the Supreme Court explicitly reserved in Christian Legal Society v. Martinez, — U.S. -, 130 S.Ct. 2971 , 2984 & n. 10, 177 L.Ed.2d 838 (2010). Although this circuit has answered this question in Truth v. Kent School District, 542 F.3d 634, 645-47 (9th Cir.2008), it is still an open question at the national level. Here, the factual ambiguities that prompt this court to remand to the district court may dilute the focus of the constitutional question, at least momentarily; nevertheless, it may well be that, at some later point, this case will be an appropriate case for further Supreme Court review.

As the majority points out, this case is not controlled by the majority opinion in Christian Legal Society ; SDSU has not conditioned official recognition of clubs on an organization’s adopting an “all-comers” policy. See Op. at 795. Rather, it has required that organizations not discriminate in membership or leadership on specified grounds: “race, sex,…

Benjamin W. Bull and Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ; Jordan W. Lorence (argued), Alliance Defense Fund, Washington, D.C.; David A. French, Alliance Defense Fund, Columbia, TN; and John M. Stewart, Law Offices of Stewart & Stewart, Orange, CA, for the plaintiffs-appellants.

Susan Westover, California State University, Office of General Counsel, Long Beach, CA, for the defendants-appellees.

Steven W. Fitschen, Virginia Beach, VA, for amicus The National Legal Foundation.

Elizabeth Gill, American Civil Liberties Union Foundation, Lesbian Gay Bisexual Transgender Project, San Francisco, CA; David Blair-Loy, American Civil Liberties Union Foundation of San Diego and Imperial Counties, San Diego, CA; James D. Esseks and Rose A. Saxe, American Civil Liberties Union Foundation, Lesbian Gay Bisexual Transgender Project, New York, NY; and Daniel Mach, American Civil Liberties Union Foundation, Program on Freedom of Religion and Belief, Washington, D.C., for amici American Civil Liberties Union and American Civil Liberties Union of San Diego and Imperial Counties.

Before: HARRY PREGERSON, KENNETH F. RIPPLE, [*] and SUSAN P. GRABER, Circuit Judges.

Opinion by…