Phi Beta Cons

Gaming the System: Judge Diane Wood’s Dissent in CLS v. Walker

With talk that Seventh Circuit judge Diane Wood may be a contender for a Supreme Court nomination, and against the backdrop of reports of her blatant expressed hostility against orthodox Christian viewpoints, it’s vital to show how that hostility played out in at least one important opinion. As Ed Whelan reported earlier on NRO, at the oral argument in Christian Legal Society v. Walker, she accused CLS of believing gays were “less than fully human,” and then turned her back on my ADF colleague Greg Baylor when he responded with the argument that all human beings are “created in God’s image,” but God “set down rules for righteous living.” (Which happens to have been standard Jewish then Judeo/Christian theology for a few thousand years.)

Unsurprisingly, Judge Wood ruled against the Christian Legal Society, writing a stinging dissent. To be clear, I don’t think the mere fact that she disagreed with CLS’s legal arguments disqualifies her from the Supreme Court. In fact, we are now only four days from oral arguments in CLS v. Martinez, a case substantially similar to CLS v. Walker, and I would not be surprised if one or more justices of the current court ultimately agreed with Judge Wood’s legal reasoning in the case.

But it’s not Judge Wood’s legal reasoning that concerns me (even though I do think some elements — such as comparing the Texas’s sodomy ban to a private religious organization’s sexual-conduct rules — are simply specious); it’s the way she disregards the most basic and common rules of procedure and practice to grant the university every benefit of doubt in the process.

To understand what she did, one must first understand — in layman’s terms — how the initial process worked.

First, the Christian Legal Society filed a verified complaint. This is a legal document that the plaintiff swears to — under penalty of perjury — and that sets out the factual assertions and legal claims in the case. Because the factual assertions are supported by an oath, they constitute actual evidence in the case — especially during preliminary proceedings.

Next, CLS filed a motion for preliminary injunction, with a supporting legal brief and with supporting evidence, including constitutions of other student organizations — organizations that had similar religious rules as CLS but had not been de-recognized. This motion asked the court to order Southern Illinois University to recognize CLS while the case was pending.

Finally — and this is very important — the university then has an opportunity to respond to both the Verified Complaint and the injunction motion with denials of CLS’s claims and with its own evidence. All of this is quite standard, and in most injunction cases, if a defendant doesn’t believe your facts are right, they not only say so, they also affirmatively introduce evidence to support their position. If they don’t, then they risk losing the motion.

What did Judge Wood in CLS v. Walker? Essentially, she completely discounted all of CLS’s evidence and then gave the university credit for not submitting evidence. This made it essentially impossible for CLS to prevail.

Here are concrete examples from Judge Wood’s dissent:

It is virtually impossible to evaluate the Law School’s action with respect to CLS without knowing whether it conforms or not to the treatment of similar organizations. CLS has made extensive allegations about these other organizations in its moving papers, but it gives us no reason to think that it has direct knowledge of the internal policies of those organizations. [Emphasis added.]

. . .

CLS has also included a smattering of constitutions from other groups, but no one from those groups has testified about the accuracy of those documents, nor do we have anything that would tell us anything about the interpretation or application of those constitutions.

. . .

It suggests that the record contains evidence that SIU has applied its AA/EEO policy in a discriminatory way, ante at 19, but the bare texts of a few other alleged constitutions, unverified and without context, are too weak a reed on which to rely. Not a single person from the Muslim Students’ Association, or the Adventist Campus Ministries, or the Young Women’s Coalition testified, or even provided an affidavit, and so we have no way of knowing whether those organizations were actively discriminating on a prohibited basis.

And then there’s this:

Because of the procedural posture of this case, including the fact that SIU has not yet submitted any evidence, many critical questions remain unexplored. [Emphasis added.]

Let me translate: CLS has submitted evidence that supports its position. SIU has not submitted any evidence to rebut CLS despite having the opportunity to do so. SIU wins. Why? Because SIU should be given a second opportunity to submit evidence. This is not the way motion practice is typically handled, and if it were the standard, a plaintiff could never win a motion for preliminary injunction if the defendant stays silent.

Moreover, the evidentiary burden she places on CLS is extraordinary. To show viewpoint discrimination in a preliminary proceeding, CLS must not only introduce the actual constitutions of various student organizations, but also produce the likely quite hostile leaders of those groups to testify that, yes, the documents mean what they so obviously say?

However, my favorite quote is this:

I agree with the majority that if SIU has somehow singled out CLS for adverse treatment, while tolerating discriminatory practices in violation of its policy for other similarly situated organizations, its position is far more tenuous. The record at this point, however, gives us no reason to think that the University is behaving in such a foolish manner, and I am unwilling to indulge in the presumption that a body that is legally part of the State of Illinois is violating the federal and state constitutions.

Let’s be clear, CLS had already provided unrebutted evidence that SIU had, in fact, “singled out CLS for adverse treatment, while tolerating discriminatory practices.” Thus, there was no need to indulge in any “presumption” that an arm of the state had violated the Constitution. There was actual evidence. 

There is a difference between a judicial philosophy and judicial bias. No litigant has a right to argue before a judge who shares their view of the meaning of the case law. Yet when judges turn basic procedure on its head (as well as literally turning her back to a lawyer in the case), one wonders if there is more at work than mere philosophy. It starts to look a lot like some litigants are more equal than others and some cases never even have a chance at a fair hearing.

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