Ratchford v. Gay Lib

• Decision Date: 21 February 1978
• Docket Number: No. 77-447,77-447
• Citation: 55 L.Ed.2d 789,98 S.Ct. 1276,434 U.S. 1080
• Parties: C. Brice RATCHFORD, etc., et al., petitioners, v. GAY LIB et al
• Court: U.S. Supreme Court

434 U.S. 1080

98 S.Ct. 1276

55 L.Ed.2d 789

C. Brice RATCHFORD, etc., et al., petitioners,

v GAY LIB et al

No. 77-447

Supreme Court of the United States

February 21, 1978

Rehearing Denied April 17, 1978.

See435 U.S. 981, 98 S.Ct. 1632.

Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

Denied.

Mr. Justice REHNQUIST, with whom Mr. Justice BLACKMUN joins, dissenting.

There is a natural tendency on the part of any conscientious court to avoid embroiling itself in a controversial area of social policy unless absolutely required to do so.I therefore completely understand, if I do not agree with, the Court's decision to deny certiorari in this case.In quick summary, the University of Missouri, exercising the traditional authority granted to it by the State to regulate what student organizations will have access to campus facilities, denied recognition to respondent Gay Lib.The denial stemmed from a finding by a University-appointed hearing officer that formal University recognition would "tend to expand homosexual behavior which will cause increased violations of [the State's sodomy statute]."Respondents, choosing to remove the dispute from its traditional University setting to the federal courts, sued in the United States District Court for the Western District of Missouri, claiming that the denial infringed their constitutional rights to free speech and freedom of association.The District Court held that the University had not violated respondents' constitutional rights.Gay Lib v. University of Missouri, 416 F.Supp. 1350(1976).Respondents, continuing to pursue a judicial solution to their problem, persuaded two judges of a three-judge panel of the Court of Appeals for the Eighth Circuit to reverse the District Court.558 F.2d 848(1977).A petition for rehearing en banc was denied by an equally divided court.The University now seeks certiorari here to review that decision.

THE CHIEF JUSTICE would grant the petition and give plenary consideration to this case.

Courts by nature are passive institutions and may decide only those issues raised by litigants in lawsuits before them.The obverse side of that passivity is the requirement that theydo dispose of those lawsuits that are before them and entitled to attention.The District Court and the Court of Appeals were doubtless as chary as we are of being thrust into the middle of this controversy but were nonetheless obligated to decide the case.Unlike the District Court and the Court of Appeals, Congress has accorded to us through the Judiciary Act of 1925,28 U.S.C. § 1254, the discretion to decline to hear a case such as this on the merits without explaining our reasons for doing so.But the existence of such discretion does not imply that it should be used as a sort of judicial storm cellar to which we may flee to escape from controversial or sensitive cases.Our Rules provide that one of the considerations governing review on certiorari is whether a Court of Appeals"has decided an important question of federal law which has not been, but should be, settled by this [C]ourt; or has decided a federal question in a way in conflict with appli- cable decisions of this [C]ourt."Rule 19(1)(b).In my opinion the panel decision of the Court of Appeals meets both of these tests, and I would therefore grant certiorari and hear the case on the merits.

The sharp split amongst the judges who considered this case below demonstrates that our past precedents do not conclusively address the issues central to this dispute.In the same manner that we expect considered and deliberate treatment of cases by these courts, we have a concomitant responsibility to aid them where confusion or uncertainty in the law prevails.By refusing to grant certiorari in this case, we ignore our function and responsibility in the framework of the federal court system and place added burdens on other courts in that system.

Writ large, the issue posed in this case is the extent to which a self-governing democracy, having made certain acts criminal, may prevent or discourage individuals from engaging in speech or conduct which encourages others to violate those laws.The Court of Appeals holds that a state university violates the First and Fourteenth Amendments when it refuses to recognize an organization whose activities both a University factfinder and the District Court found were likely to incite violations of an admittedly valid criminal statute.Neither the Court of Appeals nor respondents contend that the testimony of the expert psychologists at these hearings was insufficient to support such a finding.They appear to take instead the position that such a finding is not governed by the normal "clearly erroneous" test established in Fed.Rule Civ.Proc. 52(a).This unusual conclusion, in itself, would seem to me to be sufficient to warrant a grant of certiorari.

But lurking behind this procedural question is one which surely goes to the heart of the inevitable clash between the authority of a State to prevent the subversion of the lawful rules of conduct which it has enacted pursuant to its police power and the right of individuals under the First and Four- teenth Amendments who disagree with various of those rules to urge that they be changed through democratic processes.The University in this case did not ban the discussion in the classroom, or out of it, of the wisdom of repealing sodomy statutes.The State did not proscribe membership in organizations devoted to advancing "gay liberation."The University merely refused to recognize an organization whose activities were found to be likely to incite a violation of a valid state criminal statute.While respondents disavow any intent to advocate present...