What is the relevance of Gilmore v. City of Montgomery,417 US 556 which held that cities need not,indeed could not, exclude racially segregated schools from non-exclusive use of public parks so long as there was no lingering state action. .The Court seems to have held held that to do so would violate the associational rights of segregation academies.Some of the examples cited by the court of impermissible exclusions from public spaces,trenching on freedom of association,we would call public fora of various kinds. Marc
________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 1:21 PM To: Law & Religion issues for Law Academics Subject: RE: A real-life on-campus example Hastings' initial policy prevented CLS from "discriminating" on religious grounds but did not prevent political groups from "discriminating" on political grounds. (As Michael McConnell's brief pointed out, with quotes from, if I remember correctly, Larry Tribe, Justice Brennan, and Justice O'Connor, the ability to choose those who determine an expressive association's message is integral to the freedom of expressive association and constitutive of the expressive associational group; considering it to be discrimination in the way we ordinarily use that term is a category error.) Probably because it realized that such a policy was indefensible, Hastings tried to switch to an all-comers policy that supposedly would apply to all groups. That all comers policy is the one Doug is referencing as being egregiously unconst as to both political and religious groups. The record seems to support the view that Hastings continued to apply its original policy against CLS, along with the all-comers policy, though one could argue that the latter encompasses the former. The record also shows no enforcement of the all comers policy against groups, including Hastings Outlaw, that had provisions in their constitutions requiring officers to support the group's mission. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, May 11, 2010 10:06 AM To: Law & Religion issues for Law Academics Subject: RE: A real-life on-campus example Doug may very well be right, but I must say that plowing through the oral argument didn't highlight the difference between CLS and, say, the Young Democrats. If Hastings is indeed selecting out religious groups for special "all comers" non-discrimination with regard to eligibility for leadership positions, then I agree it's a no brainer. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, May 11, 2010 12:01 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example CLS does not claim that it should be treated differently from political groups. Hastings' written rule treated religious groups differently, because it prohibited religious discrimination but did not prohibit political discrimination. The only groups that could not organize around a viewpoint were religious group. It's all comers rule is egregiously unconstitutional as to political groups as well as to religious groups. Quoting Sanford Levinson <slevin...@law.utexas.edu>: > I can't figure out exactly why religious groups deserve to be treated > differently from, say, the young Democrats or Republicans or the > Sierra Club. The Constitution says not that we have to treat > religion differently, but, rather, that we have to keep engaging in > an endless conversation about the interplay of religion and state. > Sometimes that might require "different" treatment, as in > accommodating people who are unwilling to work on Saturday. Note, > though, that the Court, rightly or wrongly, refused to extend the > "conscientious objector" accommodation to a serious Catholic who was > opposed only to the Vietnam War (on "just war" grounds). Nor, of > course, was the Court generous to Native Americans either in Lyng or > Smith, both of which, I have to say, seemed more appealing, on their > facts, than the CLS case. But none of these cases really involved the > "freedom of association" arguments that are really at the heart of > the argument. > > Am I correct, incidentally, that the principle being advocated for > would allow any religious society to restrict its leadership to males > if it had a religious principle that only men were fit for such > roles? Judge (now Professor) McConnell seemed to emphasize the > belief-status distinction in his argument, but I'm not sure I > understand it when the justification for status discrimination is a > sincere (and quite traditional, often) religious belief. The > argument that "we, as a society" have decided that race and > sex/gender are just different from other categories of > differentiation certainly can't hold, at least for the latter, since > I'm confident that McConnell (and, I suspect, almost everybody on > this list) would not allow a Title VII-like action against the > Catholic Church or Orthodox Judaism or even strip those religions of > their tax exemption because of their blatant sexism. > > Having read the oral argument, incidentally, I do wonder if there > will be an effort simply to dismiss it as improvidently granted, > given that most of the time seemed to have been spent on trying to > figure out what exactly were the facts and the relationship between > various stipulations and "written policies" of the Law School. > > sandy > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. > Runquist > Sent: Tuesday, May 11, 2010 11:29 AM > To: religionlaw@lists.ucla.edu > Subject: Re: A real-life on-campus example > > > On 5/10/2010 8:21 PM, Steven Jamar wrote: >> Religion and religious organizations are different from other >> organizations. The constitution says we need to treat religion >> differently. Unless we decide that speech and association and equal >> treatment principles trump the religion clauses, we need to give them >> effect somehow -- both the free exercise and establishment clauses. >> > And the constitution does not say that religious organizations are to be > treated worse than all other groups. The government cannot establish > religion, but it also cannot prohibit the free exercise of religion. > Yet that, it seems to me, is exactly what the college is trying to do here. > >> What would be the result if the university made an exception for >> religious organizations -- then it is not treating the religious >> organization equally. > As long as all religious organizations are treated the same way, then > there is no violation. If, for example, it allowed CLS to meet but > prohibited a Muslim group from meeting, then this would be not treating > the religious organizations equally. > > Lisa > > -- > Lisa A. Runquist > Runquist& Associates > Attorneys at Law > 17554 Community Street > Northridge, CA 91325 > (818)609-7761 > (818)609-7794 (fax) > l...@runquist.com > http://www.runquist.com > > > > _______________________________________________ > 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. > > _______________________________________________ > 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ 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.
