"Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?" asked Justice Sonia Sotomayor.
No, McConnell [Lawyer for CLS] said. "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis, Hastings is able to enforce."
"What if the belief is that African Americans are inferior?" Justice John Paul Stevens said.
"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.
First, let's not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is "peculiarly a marketplace of ideas" that if closed will cause our culture to "stagnate and die." In fact, it's hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups' access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).
The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion "gag-rule") is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)
This is such a crappy argument, I can't believe Alito actually asked it. So you have 50 people come and take over your club because they hate you-- why would you stay in that club? Why not form another club (The True Muslim Club.) Also, What would drive 50 students to join a specific group established by people they hate? Maliciousness?
I've always thought that the Supreme Court should have 10 justices, and when there was a 5-5 split , there would be a deathmatch between one of each of the opposing sides to determine the verdict. This would also ensure a higher frequency of justice rotation.