Re: A real-life on-campus example
It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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.
RE: A real-life on-campus example
The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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. ___ 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.
Re: A real-life on-campus example
Marci says: It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Expressive association lies at the heart of freedom of speech and freedom of belief. It is not designed to protect dwindling religions from extinction. Christianity thrives in the catacombs. The CLS will survive attempts by Hastings to drive it off campus. The purpose of expressive association is to prevent govt from watering down or distorting the expressive beliefs of groups organized for the purpose of expressing those beliefs. Quite frankly, these attacks on the CLS on campus are driven by a kind of fundamentalism that has captured much, but not all, of academia. There is an established truth about human sexuality on campus, and any group that rejects that established dogma must be driven out of the on-campus marketplace of ideas. What is it about that established truth that leads people who normally praise open-mindedness to be so close-minded as to want to eradicate ideas that challenge it in the marketplace of ideas. I say let CLS and Outlaw meet on campus and let the marketplace of ideas decide which version of the truth is the true truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
RE: A real-life on-campus example
And since we are all going back and reading Elena Kagan's ruminations on the role of motive in assessing speech restrictions, we might ask what Hastings seeks to accomplish by prohibiting CLS from insisting upon its distinctive creed as a condition of leadership or voting membership. What work does its policy do in promoting the full participation of students in the life of the law school? The answer, it seems, is almost none. CLS events are open to nonadherents. Nonadherents can form groups of their own with equal access to whatever benefits are on offer. Hastings never believed - until now - that organization around a particular set of ideas diminishes the campus citizenship or opportunities of those who did not share them. (In fact, it apparently allowed La Raza to operate with a racial requirement for voting membership and leadership.) It seems clear that what Hastings want to do is to completely disassociate itself with CLS and to place it at a disadvantage vis-a-vis other groups. It wants to send a message to CLS that, to borrow Justice O'Connor's phrase, it is a disfavored member of the community. Hastings goal is not to create new opportunities for minorities but to step on a message that it does not like. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, May 12, 2010 9:11 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example So I presume Marci would have no problem with a bunch of Christians who join a campus Chabad group and turn it into a Christian evangelization organization. Or a bunch of students who favor prayer in public schools taking over a campus ACLU or Americans United chapter. Or a bunch of Federalists taking over a campus ACS chapter. After all, the Jewish students or the ACLU or AU or ACS students could just form other groups. But that approach is deeply unfaithful to the core concept of expressive associational freedom. It is sad that Marci, and the educational establishment (united as it seems to be against CLS in CLS v. Martinez), would embrace such a crude majoritarian approach. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Wed 5/12/2010 6:51 PM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Here is my question-- why would anyone care about a takeover? Wouldn't that just mean that a majority of the members voted in a different slate of leaders? It's not like a dissenter could come in and singlehandedly takeover a group, is it? They have to be chosen by a majority. Then if the group takes a turn some don't like, the minority starts their own new group, right?? Isn't that what happens everyday with groups of people? And in particular religious groups? There is even a term for it -- schism. But you don't even need a full-out schism to see this happen in religious groups, where a congregation will love a pastor but then some start disliking his/her sermons or priorities, and switch over to another congregation, or start a new congregation, or agitate for a new pastor. Isn't that the American way of a marketplace in ideas and religion? So why does CLS or any other group need protection from the possibility that outsiders will take them over? If the CLS leaders are so weak that those with different views can take over, they can form a whole new group. So just how does the all-comers rule disadvantage CLS? I think this need for protection against takeovers is just a pretense for the intent to discriminate on the basis of sexual orientation. Marci In a message dated 5/12/2010 9:21:14 P.M. Eastern Daylight Time, mark.scarbe...@pepperdine.edu writes: In any event, I think those who argue that an all comers rule is OK because takeovers are unlikely would in effect be relying on a pattern or practice of groups choosing leaders based on their views. Usually a pattern or practice is somewhat equivalent to a rule, where antidiscrimination principles are at stake. Thus in a sense CLS is being denied benefits in part because of its honesty in admitting what its members will do, and the all comers rule is supported because groups will in fact engage in discrimination, though perhaps not by way of formal rules. Mark Scarberry Pepperdine ___ 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.
Re: A real-life on-campus example
But is it a constitutional violation? I would tend to agree that the government ought to accommodate religious associations and give them equal access to government facilities and should grant religious associations exemptions from certain non-discrimination rules that apply to secular organizations. But, should this be a constitutional rule? Isn't the all comers rule a quintessential neutral rule of general applicability so religious organizations are bound by it? So no free exercise violation. Isn't a rule that says only those who abid by our non-discrimination policy are entitled to government benefits (like funding, certification, contracts) constitutional under every theory? And no one is stopping CLS or any other organization from freedom of association or freedom of speech. And Rosenberger shows how far freedom of speech can push the government to support religion. (If we apply Rosenberger we get the result that there is no establishment if the university exempts CLS, right?) So, those wanting to further constitutionalize church and state relations fail on the religion clause and equal protection, fail on freedom of association and freedom of speech grounds. So we come to a new version of constitutionalizing church and state relations -- government sponsorship of religious groups that discriminate on banned bases under an expressive association theory. (For you originalists, where is that in the constitution?) No. This battle belongs in the political processes, not in the Constitution. If the CLS case is so strong on the merits of fairness and equality and expression and association, why isn't it implemented through the political process? Because people are evil and out to get CLS? Nah. It is because people want to reduce discrimination on the basis of sexual orientation. But, like so many things, we tend to make such matters constitutional issues and so this is as well, no doubt. As a policy matter, I would exempt religious organizations from this particular non-discrimination, equal treatment requirement -- it really is not the same as race. But, I'm not at all sure I would reach the same result as a constitutional question. Religion is different and requires different treatment. Not all speech and association rules apply to trump that difference. Steve Jamar On May 13, 2010, at 8:32 AM, Esenberg, Richard wrote: The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu ] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real
Re: A real-life on-campus example
Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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. ___ 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.
Re: A real-life on-campus example
Hastings is not stopping the message. It is stopping an action. It is not preventing CLS from saying anything it wants to say. It is preventing it from discriminating on a basis the university considers improper. Christian students are allowed full participation in the life of the law school. They can have a Christian student organization that doesn't exclude gays. Yes. Hasting wants to associate itself with a policy that an group advances -- but it is not prohibiting that group from disagreeing with it. It is just prohibiting that group from being a certified student organization because it discriminates unlawfully. If CLS allowed gays in, it could still publish such messages as it wants. Steve Jamar On May 13, 2010, at 9:01 AM, Esenberg, Richard wrote: And since we are all going back and reading Elena Kagan's ruminations on the role of motive in assessing speech restrictions, we might ask what Hastings seeks to accomplish by prohibiting CLS from insisting upon its distinctive creed as a condition of leadership or voting membership. What work does its policy do in promoting the full participation of students in the life of the law school? The answer, it seems, is almost none. CLS events are open to nonadherents. Nonadherents can form groups of their own with equal access to whatever benefits are on offer. Hastings never believed - until now - that organization around a particular set of ideas diminishes the campus citizenship or opportunities of those who did not share them. (In fact, it apparently allowed La Raza to operate with a racial requirement for voting membership and leadership.) It seems clear that what Hastings want to do is to completely disassociate itself with CLS and to place it at a disadvantage vis-a- vis other groups. It wants to send a message to CLS that, to borrow Justice O'Connor's phrase, it is a disfavored member of the community. Hastings goal is not to create new opportunities for minorities but to step on a message that it does not like. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu ] on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, May 12, 2010 9:11 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example So I presume Marci would have no problem with a bunch of Christians who join a campus Chabad group and turn it into a Christian evangelization organization. Or a bunch of students who favor prayer in public schools taking over a campus ACLU or Americans United chapter. Or a bunch of Federalists taking over a campus ACS chapter. After all, the Jewish students or the ACLU or AU or ACS students could just form other groups. But that approach is deeply unfaithful to the core concept of expressive associational freedom. It is sad that Marci, and the educational establishment (united as it seems to be against CLS in CLS v. Martinez), would embrace such a crude majoritarian approach. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Wed 5/12/2010 6:51 PM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Here is my question-- why would anyone care about a takeover? Wouldn't that just mean that a majority of the members voted in a different slate of leaders? It's not like a dissenter could come in and singlehandedly takeover a group, is it? They have to be chosen by a majority. Then if the group takes a turn some don't like, the minority starts their own new group, right?? Isn't that what happens everyday with groups of people? And in particular religious groups? There is even a term for it -- schism. But you don't even need a full-out schism to see this happen in religious groups, where a congregation will love a pastor but then some start disliking his/ her sermons or priorities, and switch over to another congregation, or start a new congregation, or agitate for a new pastor. Isn't that the American way of a marketplace in ideas and religion? So why does CLS or any other group need protection from the possibility that outsiders will take them over? If the CLS leaders are so weak that those with different views can take over, they can form a whole new group. So just how does the all-comers rule disadvantage CLS? I think this need for protection against takeovers is just a pretense for the intent to discriminate on the basis of sexual orientation. Marci In a message dated 5/12/2010 9:21:14 P.M. Eastern Daylight Time, mark.scarbe...@pepperdine.edu writes: In any event, I think those who argue that an all comers rule is OK because takeovers are unlikely would in effect be relying on a pattern or practice of groups choosing leaders based on their views. Usually a pattern or practice
Re: A real-life on-campus example
Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
RE: A real-life on-campus example
Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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
Re: A real-life on-campus example
As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
RE: A real-life on-campus example
Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
RE: A real-life on-campus example
Marci Hamilton wrote: Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. I agree. Think of the Shakers, for example. Judy Baer ___ 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.
Re: A real-life on-campus example
Actually, it is not true that the government cannot or does not impose all-comer human rights policies on religions expecting government benefits outside Hastings. That is the core of the Bob Jones Univ case. That is why I raised race discrimination earlier Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 14:24:57 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu; Rick Duncannebraskalawp...@yahoo.com Subject: RE: A real-life on-campus example Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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
RE: A real-life on-campus example
Bob Jones tells us nothing about whether CLS associational rights would protect it from an all comers policy imposed through, say, the application of discrimination laws. Within the public forum context, however, it is not clear to me that permitting the government to forbid status discrimination means that it may also forbid viewpoint discrimination. CLS is not claiming the right to engage in status discrimination and I think we ought to pause before we elide the distinction. From: hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 10:01 AM To: Esenberg, Richard; Law Religion issues for LawAcademics; Rick Duncan Subject: Re: A real-life on-campus example Actually, it is not true that the government cannot or does not impose all-comer human rights policies on religions expecting government benefits outside Hastings. That is the core of the Bob Jones Univ case. That is why I raised race discrimination earlier Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 14:24:57 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu; Rick Duncannebraskalawp...@yahoo.com Subject: RE: A real-life on-campus example Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth
RE: A real-life on-campus example
Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices
RE: A real-life on-campus example
Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased
RE: A real-life on-campus example
The lower courts in Gilmore had enjoined the city from allowing segregation academies-established to sidestep a public school integration order-any use of city facilities, including parks and zoos for field trips. The Court set aside this last part of the order on the grounds,inter alia,that it trenched on those schools associational rights,ie their right to associate with whites only. Why am I exaggerating when I ask whether Gilmore thus controls Hastings? It is true, as Ira notes, that much of Gilmore deals with a state action problem, especially with regard to exclusive uses of public property by private schools. But that was not the only holding of the case. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Thursday, May 13, 2010 12:27 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion
Re: A real-life on-campus example
On 5/12/2010 6:51 PM, hamilto...@aol.com wrote: Here is my question-- why would anyone care about a takeover? Wouldn't that just mean that a majority of the members voted in a different slate of leaders? It's not like a dissenter could come in and singlehandedly takeover a group, is it? They have to be chosen by a majority. Then if the group takes a turn some don't like, the minority starts their own new group, right?? Isn't that what happens everyday with groups of people? And in particular religious groups? There is even a term for it -- schism. But you don't even need a full-out schism to see this happen in religious groups, where a congregation will love a pastor but then some start disliking his/her sermons or priorities, and switch over to another congregation, or start a new congregation, or agitate for a new pastor. Isn't that the American way of a marketplace in ideas and religion? Well, not really. To begin with, there are congregational churches and hierarchical churches, and churches that fall sort of in the middle. In fact, there is no such thing as boilerplate bylaws for churches because they all differ. Anyway, with hierarchical churches, the church is controlled by the higher church authority (e.g. see the recent Episcopal cases). With congregational churches, where the members control, there is the question of who is a true member and has a right to vote. Normally the people have to be admitted; you do not generally become a member just by attending meetings. Sometimes the members have to take classes; generally they need to agree to a statement of faith. If someone does not do these things they can still attend the church, but they cannot vote at church meetings. I had one case that went to trial over who the members of the church were as of a specific date. The vast majority of church splits occur, not because someone doesn't like a pastor's sermons (as you said, that person will probably just find another church where he or she is more comfortable), but over some doctrinal issue. And courts cannot decide matters of church doctrine; they must decide cases on the basis of neutral principles of law. The case I mentioned re the members had to do with whether the church was going to remain a Christian Church/Church of Christ, or whether it was going to become a Pentecostal Church (and yes, new people came in and claimed (unsuccessfully) that they were members, in order to try to wrest the property away from the original church). So why does CLS or any other group need protection from the possibility that outsiders will take them over? If the CLS leaders are so weak that those with different views can take over, they can form a whole new group. So just how does the all-comers rule disadvantage CLS? I think this need for protection against takeovers is just a pretense for the intent to discriminate on the basis of sexual orientation. As set forth above, churches (and other religious groups) all have their own doctrines and beliefs, and generally require members to adhere to those beliefs. A statement of faith of a Christian church is going to be totally different from a new age type church. And there is no uniformity of beliefs between the various Christian churches. Doctrinal disputes have been going on, probably as long as there have been people to believe (if you get 5 rabbis together, you will probably end up with 6 opinions). The issue of sexual orientation is really a very recent dispute that has arisen in some religious organizations, and is only one item on a long list of beliefs, any one of which would disqualify someone from membership/leadership in the particular organization. Truly, most Christian groups do NOT spend most of their time on the issue of sexual orientation. Lisa In a message dated 5/12/2010 9:21:14 P.M. Eastern Daylight Time, mark.scarbe...@pepperdine.edu writes: In any event, I think those who argue that an all comers rule is OK because takeovers are unlikely would in effect be relying on a pattern or practice of groups choosing leaders based on their views. Usually a pattern or practice is somewhat equivalent to a rule, where antidiscrimination principles are at stake. Thus in a sense CLS is being denied benefits in part because of its honesty in admitting what its members will do, and the all comers rule is supported because groups will in fact engage in discrimination, though perhaps not by way of formal rules. Mark Scarberry Pepperdine -- 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
RE: A real-life on-campus example
Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
RE: A real-life on-campus example
Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:26:48 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf of Brownstein, Alan aebrownst...@ucdavis.edu) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end
Re: A real-life on-campus example
Rick-- This strikes me as your desired interpretation of the law, not the law as it stands. and it does not reflect the case. Yours and CLS's reasoning leads to an absolutely absurd result. When we have a court telling a university or law school that it cannot require all school-supported groups to include all students (if any student desires), as part of a mission to create open dialogue, then we might as well hand in our tenure and the academic freedom attached to it. As I said at the start, CLS's position is deeply anti-intellectual and requires one to buy into a Balkanized view of the universe. Years ago, I taught a seminar in Budapest with students from the Balkans. They described the disintegration of a shared culture this way. It used to be that when you got on the subway or the train, everyone was a fellow citizen, not a Jew or a Christian or a Muslim. Everyone shared some common ground and people were polite to each other regardless. Then, the disintegration started and people became very conscious of the religious identity of the person across the aisle and seated next to them. Once that crept into the mindset, you became very uncomfortable seated next to someone of a different religion, you distrusted other believers automatically, as part of the culture. I will never forget their sense of loss or their sincerity. I think CLS's position (as well as Wide Awake's position in Rosenberger) as being a step in that direction. In this era, we need far more effort to find common ground and ways for different believers to speak to each other. Exclusion in the academic context, where there is supposed to be wide-ranging, challenging discourse, seems precisely the wrong move. Marci -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, May 13, 2010 12:51 pm Subject: RE: A real-life on-campus example Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages 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.
RE: A real-life on-campus example
Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 13:59:20 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:26:48 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf
RE: A real-life on-campus example
I'm sorry to be late joining this thread, but I thought that the argument in the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting groups from discriminating against individuals on religious grounds, while permitting discrimination on political grounds, made no sense to me. This is, after all, a pretty common distinction that is drawn in many civil rights statutes. I appreciate the need for religious accommodations in many of these statutes, but I never thought that if Title VII did not have the exemption for religious organizations that currently exists that the law would be unconstitutional because it is viewpoint discriminatory. Moreover, the implications of this argument are problematic to say the least. CLS seemed to arguing that it was legitimate, even praiseworthy, for nonreligious clubs to be prohibited from discriminating on the basis of religion, even though no clubs were prohibited from discriminating on political grounds. If distinguishing between religious and political discrimination is viewpoint discrimination prohibited by the free speech clause, wouldn't it also be viewpoint discrimination if the Hastings policy allowed the CLS to discriminate against liberals, while prohibiting the Marxist Club from discriminating against Christians. Indeed, would it not be unconstitutional viewpoint discrimination to ever protect individuals against discrimination based on religious beliefs without also prohibiting discrimination based on political belief? Why couldn't a nonreligious individual who has strong political convictions argue that a law providing individuals who hold (and express) religious beliefs more protection than he receives against discrimination based on his political beliefs is unconstitutional viewpoint discrimination. Is this really a road we want to go down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 10:21 AM 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
RE: A real-life on-campus example
I'm sorry to be late joining this thread, but I thought that the argument in the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting groups from discriminating against individuals on religious grounds, while permitting discrimination on political grounds, made no sense to me. This is, after all, a pretty common distinction that is drawn in many civil rights statutes. I appreciate the need for religious accommodations in many of these statutes, but I never thought that if Title VII did not have the exemption for religious organizations that currently exists that the law would be unconstitutional because it is viewpoint discriminatory. Moreover, the implications of this argument are problematic to say the least. CLS seemed to arguing that it was legitimate, even praiseworthy, for nonreligious clubs to be prohibited from discriminating on the basis of religion, even though no clubs were prohibited from discriminating on political grounds. If distinguishing between religious and political discrimination is viewpoint discrimination prohibited by the free speech clause, wouldn't it also be viewpoint discrimination if the Hastings policy allowed the CLS to discriminate against liberals, while prohibiting the Marxist Club from discriminating against Christians. Indeed, would it not be unconstitutional viewpoint discrimination to ever protect individuals against discrimination based on religious beliefs without also prohibiting discrimination based on political belief? Why couldn't a nonreligious individual who has strong political convictions argue that a law providing individuals who hold (and express) religious beliefs more protection than he receives against discrimination based on his political beliefs is unconstitutional viewpoint discrimination. Is this really a road we want to go down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 10:21 AM 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. ___ 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
RE: A real-life on-campus example
Alan, you are assuming that any individual could make this claim, and I agree that that sounds problematic. But at the level of groups organized around a viewpoint, the distinction is fundamental. The Hastings written policy was that groups could enforce their ability to organize around political viewpoints but could not enforce their ability to organize around religious viewpoints. That is viewpoint discrimination. It is also a category mistake. The civil rights laws prohibited religious discrimination with a view to the commerical world. Congress never meant to require Baptist rabbis and atheist church elders. A ban on religious discrimination as applied to a religious organization is as idiotic as a ban on political discrimination as applied to a political party. Hastings has borrowed the Congressional list of protected categories and applied it in a wholly inappropriate context. Quoting Brownstein, Alan aebrownst...@ucdavis.edu: I'm sorry to be late joining this thread, but I thought that the argument in the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting groups from discriminating against individuals on religious grounds, while permitting discrimination on political grounds, made no sense to me. This is, after all, a pretty common distinction that is drawn in many civil rights statutes. I appreciate the need for religious accommodations in many of these statutes, but I never thought that if Title VII did not have the exemption for religious organizations that currently exists that the law would be unconstitutional because it is viewpoint discriminatory. Moreover, the implications of this argument are problematic to say the least. CLS seemed to arguing that it was legitimate, even praiseworthy, for nonreligious clubs to be prohibited from discriminating on the basis of religion, even though no clubs were prohibited from discriminating on political grounds. If distinguishing between religious and political discrimination is viewpoint discrimination prohibited by the free speech clause, wouldn't it also be viewpoint discrimination if the Hastings policy allowed the CLS to discriminate against liberals, while prohibiting the Marxist Club from discriminating against Christians. Indeed, would it not be unconstitutional viewpoint discrimination to ever protect individuals against discrimination based on religious beliefs without also prohibiting discrimination based on political belief? Why couldn't a nonreligious individual who has strong political convictions argue that a law providing individuals who hold (and express) religious beliefs more protection than he receives against discrimination based on his political beliefs is unconstitutional viewpoint discrimination. Is this really a road we want to go down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 10:21 AM 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
RE: A real-life on-campus example
A quick response, Doug. With regard to my example about individuals, I agree that this is the most problematic example, but I'm not sure what the argument would be that precludes an individual from challenging an anti-discrimination law as viewpoint discriminatory. (A law that protected individuals holding left wing political views from discrimination, but failed to provide comparable protection to individuals holding right wings views would be viewpoint discriminatory, wouldn't it?) As to categories, if there were only two categories - houses of worship and commercial institutions - life would be a lot simpler. But there is a lot between these two categories and I think the world of religiously, culturally, politically, or socially affiliated non-profits raises a lot of complicated problems. But basically, I think my disagreement with you comes down to this. I certainly agree that if Title VII required a synagogue to hire a Baptist as a rabbi, that would be unconstitutional (as well as idiotic). But I would not be arguing that it is unconstitutional because it violates the free speech clause prohibition against viewpoint discrimination because Title VII doesn't prohibit discrimination on political grounds. Would you? I have considerably sympathy for the CLS freedom of association argument (although I worry about how far such an argument might extend.) But I continue to believe that extending the religion is a viewpoint of speech protected by the free speech clause prohibition against viewpoint discrimination argument is fraught with perils. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, May 12, 2010 10:11 AM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example Alan, you are assuming that any individual could make this claim, and I agree that that sounds problematic. But at the level of groups organized around a viewpoint, the distinction is fundamental. The Hastings written policy was that groups could enforce their ability to organize around political viewpoints but could not enforce their ability to organize around religious viewpoints. That is viewpoint discrimination. It is also a category mistake. The civil rights laws prohibited religious discrimination with a view to the commerical world. Congress never meant to require Baptist rabbis and atheist church elders. A ban on religious discrimination as applied to a religious organization is as idiotic as a ban on political discrimination as applied to a political party. Hastings has borrowed the Congressional list of protected categories and applied it in a wholly inappropriate context. Quoting Brownstein, Alan aebrownst...@ucdavis.edu: I'm sorry to be late joining this thread, but I thought that the argument in the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting groups from discriminating against individuals on religious grounds, while permitting discrimination on political grounds, made no sense to me. This is, after all, a pretty common distinction that is drawn in many civil rights statutes. I appreciate the need for religious accommodations in many of these statutes, but I never thought that if Title VII did not have the exemption for religious organizations that currently exists that the law would be unconstitutional because it is viewpoint discriminatory. Moreover, the implications of this argument are problematic to say the least. CLS seemed to arguing that it was legitimate, even praiseworthy, for nonreligious clubs to be prohibited from discriminating on the basis of religion, even though no clubs were prohibited from discriminating on political grounds. If distinguishing between religious and political discrimination is viewpoint discrimination prohibited by the free speech clause, wouldn't it also be viewpoint discrimination if the Hastings policy allowed the CLS to discriminate against liberals, while prohibiting the Marxist Club from discriminating against Christians. Indeed, would it not be unconstitutional viewpoint discrimination to ever protect individuals against discrimination based on religious beliefs without also prohibiting discrimination based on political belief? Why couldn't a nonreligious individual who has strong political convictions argue that a law providing individuals who hold (and express) religious beliefs more protection than he receives against discrimination based on his political beliefs is unconstitutional viewpoint discrimination. Is this really a road we want to go down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 10:21 AM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Hastings' initial policy prevented CLS from discriminating
Re: A real-life on-campus example
1. What evidence is there that Outlaw excludes those who don't support its positions? 2. Asssuming there is such evidence, once again Rick is refusing to recognize that associational rights, expressive rights, and religious rights are not all one thing governed by a single, unified or coherent set of principles. If one takes Rick's point seriously, then there is no establishment clause (other than coercion) or free exercise accommodations allowed because every accommodation for a religious group would be viewpoint based. Steve On Wed, May 12, 2010 at 6:14 PM, Rick Duncan nebraskalawp...@yahoo.comwrote: Alan, CLS is not discriminating against protected groups qua groups. CLS wishes to organize around a set of beliefs and to exclude from membership those who don't subscribe to those beliefs. This is what expressive association is designed to protect. When Hastings requires CLS to admit members who don't share its beliefs about the divinity of Christ or the good of human sexuality, it prevents CLS from effectively expressing those viewpoints as a group. At the same time, other student groups are allowed to exclude members who don't subscribe to the beliefs of these other groups. Thus, Outlaw can exclude those who don't support its beliefs about gay sexual equality, but CLS can not exclude those who reject its beliefs about the sinfulness of homosexuality. How is this not viewpoint discrimination? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
RE: A real-life on-campus example
Hastings' Outlaw's constitution said officers could be removed for not supporting its mission, if I remember correctly. Hastings did not require it to amend its constitution. In any event, I think those who argue that an all comers rule is OK because takeovers are unlikely would in effect be relying on a pattern or practice of groups choosing leaders based on their views. Usually a pattern or practice is somewhat equivalent to a rule, where antidiscrimination principles are at stake. Thus in a sense CLS is being denied benefits in part because of its honesty in admitting what its members will do, and the all comers rule is supported because groups will in fact engage in discrimination, though perhaps not by way of formal rules. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Steven Jamar Sent: Wed 5/12/2010 6:06 PM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example 1. What evidence is there that Outlaw excludes those who don't support its positions? 2. Asssuming there is such evidence, once again Rick is refusing to recognize that associational rights, expressive rights, and religious rights are not all one thing governed by a single, unified or coherent set of principles. If one takes Rick's point seriously, then there is no establishment clause (other than coercion) or free exercise accommodations allowed because every accommodation for a religious group would be viewpoint based. Steve On Wed, May 12, 2010 at 6:14 PM, Rick Duncan nebraskalawp...@yahoo.com wrote: Alan, CLS is not discriminating against protected groups qua groups. CLS wishes to organize around a set of beliefs and to exclude from membership those who don't subscribe to those beliefs. This is what expressive association is designed to protect. When Hastings requires CLS to admit members who don't share its beliefs about the divinity of Christ or the good of human sexuality, it prevents CLS from effectively expressing those viewpoints as a group. At the same time, other student groups are allowed to exclude members who don't subscribe to the beliefs of these other groups. Thus, Outlaw can exclude those who don't support its beliefs about gay sexual equality, but CLS can not exclude those who reject its beliefs about the sinfulness of homosexuality. How is this not viewpoint discrimination? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. winmail.dat___ 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.
RE: A real-life on-campus example
So I presume Marci would have no problem with a bunch of Christians who join a campus Chabad group and turn it into a Christian evangelization organization. Or a bunch of students who favor prayer in public schools taking over a campus ACLU or Americans United chapter. Or a bunch of Federalists taking over a campus ACS chapter. After all, the Jewish students or the ACLU or AU or ACS students could just form other groups. But that approach is deeply unfaithful to the core concept of expressive associational freedom. It is sad that Marci, and the educational establishment (united as it seems to be against CLS in CLS v. Martinez), would embrace such a crude majoritarian approach. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Wed 5/12/2010 6:51 PM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Here is my question-- why would anyone care about a takeover? Wouldn't that just mean that a majority of the members voted in a different slate of leaders? It's not like a dissenter could come in and singlehandedly takeover a group, is it? They have to be chosen by a majority. Then if the group takes a turn some don't like, the minority starts their own new group, right?? Isn't that what happens everyday with groups of people? And in particular religious groups? There is even a term for it -- schism. But you don't even need a full-out schism to see this happen in religious groups, where a congregation will love a pastor but then some start disliking his/her sermons or priorities, and switch over to another congregation, or start a new congregation, or agitate for a new pastor. Isn't that the American way of a marketplace in ideas and religion? So why does CLS or any other group need protection from the possibility that outsiders will take them over? If the CLS leaders are so weak that those with different views can take over, they can form a whole new group. So just how does the all-comers rule disadvantage CLS? I think this need for protection against takeovers is just a pretense for the intent to discriminate on the basis of sexual orientation. Marci In a message dated 5/12/2010 9:21:14 P.M. Eastern Daylight Time, mark.scarbe...@pepperdine.edu writes: In any event, I think those who argue that an all comers rule is OK because takeovers are unlikely would in effect be relying on a pattern or practice of groups choosing leaders based on their views. Usually a pattern or practice is somewhat equivalent to a rule, where antidiscrimination principles are at stake. Thus in a sense CLS is being denied benefits in part because of its honesty in admitting what its members will do, and the all comers rule is supported because groups will in fact engage in discrimination, though perhaps not by way of formal rules. Mark Scarberry Pepperdine ___ 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.
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.
RE: A real-life on-campus example
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.
Re: A real-life on-campus example
Yes. Free exercise, establishment, free speech, freedom of association, and equality are in tension here. So what is your principled solution to resolving the tension? Does equality trump everything? If so, then don't you need to eliminate all accommodations for religion? Your response to my concerns strikes me as a bit simplistic. I don't see how they would work out. Constitutionally I have no problem with accommodating CLS. But I also have little problem with requiring them not to discriminate (isn't that equality?) just like other sanctioned groups. It is not easy. It is easy to make slogans, to twist the framing of the problem (like Rick Duncan has done, and as I have done and others too) to bias it one way or another, but it is a real problem with important, fundamental principles in competition -- as was the case in Rosenberger. I would have gone the other way, but, unlike some decisions, I don't consider Rosenberger particularly harmful or problematic -- except insofar as the lack of somewhat more clear lines is always problematic. Steve On May 11, 2010, at 12:28 PM, Lisa A. Runquist wrote: 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. One should, for example, be able to see that things are hopeless and yet be determined to make them otherwise. -- F. Scott Fitzgerald. ___ 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.
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
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
RE: A real-life on-campus example
It is common for a dismissal as improvidently granted to occur soon after oral argument. I think too much time has passed to make such a disposition likely. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, May 11, 2010 12:50 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example 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
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
RE: A real-life on-campus example
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
Re: A real-life on-campus example
CLS is not being stopped from association and restricting membership, etc. CLS can belief-test leaders. That is not the issue. The government is not stopping CLS from meeting, from associating, from adverstising, from doing anything at all except using government property when CLS fails to comply with a neutral, secular law/rule of general applicability. I disagree with the Rosenberger reasoning and result, but it would seem that that equality principle -- treating CLS just like all the other organizations (must comply with the neutral, generally applicable rule) could have some traction here. 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. Will there be difficult cases? Surely. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. It is getting special treatment. And that seems ok. But what is being sought here is not a policy based accommodation, but a constitution-based one. Steve On Mon, May 10, 2010 at 10:52 PM, Eric Rassbach erassb...@becketfund.orgwrote: Chip - One real-life, on-campus example is cited at page 33 n.5 of Petitioner's brief -- a Mormon student was not allowed to lead Bible study at the Washburn University CLS chapter. His reaction was to petition (successfully) to get the CLS chapter derecognized. It appears from PACER that CLS got re-recognized only after filing suit and settling the case. In a religiously diverse, politically polarized world (witness this list), only Polyanna believes that these situations will just work themselves out absent the shadow of the law. Maybe folks think that an outcome allowing CLS to belief-test leaders and voting members is immoral or otherwise wrong, but they shouldn't pretend the conflict doesn't actually exist. Eric -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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.
