I usually agree with Eugene, but here I must disagree sharply.
All expressive groups "discriminate" in a sense in choice of leaders based
on consistency of the leaders' views with the groups' views. To say that
groups that "discriminate" on the basis of religion in choice of leaders
cannot use a forum but that groups that "discriminate" on other ideological
bases in selection of leaders (e.g., on basis of belief in environmentalism)
may use the forum is in fact to discriminate against religion. The use of
the term "discriminate" to describe a religious group's decision to choose
leaders who reflect the group's views is quite unfortunate, at least if we
choose to extend to such choices the connotations of the word as it is used
with respect to racial discrimination and other invidious forms of
discrimination. It is only those connotations that provide the seeming
justification of the state's discrimination.
Of course the state's discrimination against religion should raise
constitutional red flags that are not raised by a private group's choice of
leaders, and thus in effect we have constitutional values being trumped by
nonconstitutional values. Worse than that, we have nonconstitutional values
(the desire to stigmatize religious "discrimination" in religious groups'
choice of leaders) that trump not only the constitutional value of
government viewpoint neutrality in public forums but also the constitutional
value of freedom of religion. Freedom of religion requires that religious
groups be able freely to choose leaders on religious grounds, without being
penalized by the government for doing so.
Mark Scarberry
Pepperdine
-----Original Message-----
From: [EMAIL PROTECTED]
To: Law & Religion issues for Law Academics
Sent: 5/21/2006 1:44 PM
Subject: RE: Making a distinction
I think the answer turns out to be yes, surprising as it might
appear. Recall that these were designated public fora (at best) --
government property that the government had no obligation to turn over
to any speakers. If the government opens the property to private
speakers, then it may not discriminate in viewpoint-based ways (or in
content-based ways, except when the content-based ways are necessary to
enforce the government-defined limits of the forum).
But the government may choose to open its property, I think, only to
groups that make their programs -- and the programs' organizational
committees -- open to people without regard to race, sex, sexual
orientation, religion, and so on. That is a designation that's neutral
as to the content of the group's speech, and as to the viewpoint of the
group's speech. The government may not impose such a restriction as to
speech on private property, or in traditional public fora. But when it
opens its non-traditional-public-forum property, it's entitled to
require that the groups that use it use it in nondiscriminatory ways.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Sunday, May 21, 2006 1:38 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Making a distinction
Are you saying that the school districts in Lamb's Chapel and Good News
Club could have lawfully sustained their desire not to rent school
premises in off hours to religious organizations if, instead of saying
"we will not rent to religious organizations," they had simply
established a rule that they would not rent to any organization that
dicriminated on the basis of religion in the selection of its leaders?
-- Daniel Bort
-----Original Message-----
From: Volokh, Eugene <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Sat, 20 May 2006 20:41:57 -0700
Subject: RE: Making a distinction
Lamb's Chapel and Rosenberger hold that, in a designated public
forum (or even in a nonpublic forum), the government may not restrict
speech based on its religiosity, because that constitutes discrimination
based on the viewpoint of the speech. (There's a controversy about
whether such a restriction should be seen as viewpoint-based, but that's
what Rosenberger held.)
When the government opens a designated public forum only to
groups that don't discriminate on various grounds in their member or
officer selection decisions, that's not a restriction that discriminates
based on the viewpoint of the speech. It is a restriction that
discriminates based on the groups' exercise of their expressive
association rights, but I argue in the article I linked to that this
should not be unconstitutional.
> -----Original Message-----
> From: [EMAIL PROTECTED]
<mailto:religionlaw-bounces%40lists.ucla.edu>
> [ mailto:[EMAIL PROTECTED]
<mailto:religionlaw-bounces%40lists.ucla.edu> ] On Behalf Of Ed Brayton
> Sent: Saturday, May 20, 2006 6:05 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Making a distinction
>
>
> Volokh, Eugene wrote:
>
> > It seems to me that, as a general matter, the
> government may deny
> >benefits to groups that discriminate based on race, religion, sexual
> >orientation, sex, etc.; I argue in my forthcoming Freedom of
> Expressive
> >Association and Government Subsidies (Stan. L. Rev,
> > http://www.law.ucla.edu/volokh/association.pdf
<http://www.law.ucla.edu/volokh/association.pdf> ) that such
> restrictions
> >are permissible content-neutral (or at least viewpoint-neutral)
> >definitions of a designated public forum. If I understand the
> >reasoning behind the original North Carolina preliminary injunction
> >(since dissolved on mootness grounds, I think, because of a
> change in
> >UNC
> >policy) correctly, it seems to me that it was mistaken. So
> I'm not sure
> >there's anything that needs to be reconciled there.
> >
> > In some cases that involve similar facts, the court
> reasoned that the
> >nondiscrimination policy was applied selectively, based on
> the actual
> >viewpoints that the group expressed (so that groups that express
> >certain viewpoints weren't allowed to discriminate but others were).
> >That, I think, is right, if the facts support it; and it's
> consistent
> >with the California marina case, because while
> content-neutral (or at
> >least viewpoint-neutral) applications of nondiscrimination
> policies are
> >OK, applications that are based on the viepwoint expressed
> by the group
> >(rather than just by the group's expressive association
> decisions) are
> >not.
> >
> >
> So where does that leave cases like Lamb's Chapel and Rosenberger?
> Neither is precisely on point, but Rosenberger is pretty close to the
> North Carolina situation, although I don't think it was
> really argued on
> the basis of non-discrimination law. Would you say that
> Rosenberger was
> decided incorrectly? Or Lamb's Chapel?
>
> Please pardon my amateur's understanding of the cases; I'm
> asking this
> to try and elevate that level of understanding.
>
> Ed Brayton
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
<mailto:Religionlaw%40lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password,
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
<mailto:Religionlaw%40lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
Please note that messages sent to this large list cannot be viewed as
private.
Anyone can subscribe to the list and read messages that are posted;
people can
read the Web archives; and list members can (rightly or wrongly) forward
the
messages to others.
<<ATT43356.txt>>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
