202. How Do You Solve a Problem Like Martinez? — Benjamin A. Fleshman

In 2010, the Supreme Court issued a consequential opinion that stifled the freedom of association across countless campuses when it came to religious groups. In CLS v. Martinez, in a divided 5-4 opinion, the Court opened the way for universities to limit group association by refusing to grant them power to elect those leaders best suited to carry on that group's mission and purpose.

In a forthcoming article (here) in the Texas Review of Law and Politics, my guest today, Benjamin Fleshman, covers the infamous Martinez decision and the problem it created for student organizations across the country. Given the closeness of this topic to my own work, we discuss in some detail the infamous "all comers" policy (see this and this) still upheld in some law schools, e.g., UC-Berkeley (see this), nature of student organizations, the importance of recent Supreme Court decisions (see recent FCA en banc decision in the Ninth Circuit and then the other mentioned FCA case in Washington, D.C.), the recent attempts to strengthen group access (see this), and more.

Benjamin joined The Becket Fund for Religious Liberty as Counsel in 2023. His work there focuses on appellate litigation in both state and federal courts. Prior to joining Becket, Ben worked as an associate at Shearman & Sterling in Washington, D.C., where he practiced antitrust law and complex commercial litigation. Before entering private practice, he served as a law clerk to Judge Jennifer Walker Elrod of the United States Court of Appeals for the Fifth Circuit. Full bio.

Cross & Gavel is a production of CHRISTIAN LEGAL SOCIETY. The episode was produced by Josh Deng, with music from Vexento.