Re: Making a distinction
Are you saying that the school districts in Lamb's Chapel and Good News Club could have lawfully sustained their desire not to rent school premises in off hours to religious organizations if, instead of saying "we will not rent to religious organizations,"they hadsimply established a rule that they would not rent to any organization that dicriminated on the basis of religion in the selection of its leaders? -- Daniel Bort-Original Message-From: Volokh, Eugene [EMAIL PROTECTED]To: Law Religion issues for Law Academics religionlaw@lists.ucla.eduSent: Sat, 20 May 2006 20:41:57 -0700Subject: RE: Making a distinction Lamb's Chapel and Rosenberger hold that, in a designated public forum (or even in a nonpublic forum), the government may not restrict speech based on its religiosity, because that constitutes discrimination based on the viewpoint of the speech. (There's a controversy about whether such a restriction should be seen as viewpoint-based, but that's what Rosenberger held.) When the government opens a designated public forum only to groups that don't discriminate on various grounds in their member or officer selection decisions, that's not a restriction that discriminates based on the viewpoint of the speech. It is a restriction that discriminates based on the groups' exercise of their expressive association rights, but I argue in the article I linked to that this should not be unconstitutional. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Ed Brayton Sent: Saturday, May 20, 2006 6:05 PM To: Law Religion issues for Law Academics Subject: Re: Making a distinction Volokh, Eugene wrote: It seems to me that, as a general matter, the government may deny benefits to groups that discriminate based on race, religion, sexual orientation, sex, etc.; I argue in my forthcoming Freedom of Expressive Association and Government Subsidies (Stan. L. Rev, http://www.law.ucla.edu/volokh/association.pdf) that such restrictions are permissible content-neutral (or at least viewpoint-neutral) definitions of a designated public forum. If I understand the reasoning behind the original North Carolina preliminary injunction (since dissolved on mootness grounds, I think, because of a change in UNC policy) correctly, it seems to me that it was mistaken. So I'm not sure there's anything that needs to be reconciled there. In some cases that involve similar facts, the court reasoned that the nondiscrimination policy was applied selectively, based on the actual viewpoints that the group expressed (so that groups that express certain viewpoints weren't allowed to discriminate but others were). That, I think, is right, if the facts support it; and it's consistent with the California marina case, because while content-neutral (or at least viewpoint-neutral) applications of nondiscrimination policies are OK, applications that are based on the viepwoint expressed by the group (rather than just by the group's expressive association decisions) are not. So where does that leave cases like Lamb's Chapel and Rosenberger? Neither is precisely on point, but Rosenberger is pretty close to the North Carolina situation, although I don't think it was really argued on the basis of non-discrimination law. Would you say that Rosenberger was decided incorrectly? Or Lamb's Chapel? Please pardon my amateur's understanding of the cases; I'm asking this to try and elevate that level of understanding. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu 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
RE: Making a distinction
Title: Message I think the answer turns out to be yes, surprising as it might appear. Recall that these were designated public fora (at best) -- government property that the government had no obligation to turn over to any speakers. If the government opens the property to private speakers, then it may not discriminate in viewpoint-based ways (or in content-based ways, except when the content-based ways are necessary to enforce the government-defined limits of the forum). But the government may choose to open its property, I think, only to groups that make their programs -- and the programs' organizational committees -- open to people without regard to race, sex, sexual orientation, religion, and so on. That is a designation that's neutral as to the content of the group's speech, and as to the viewpoint of the group's speech. The government may not impose such a restriction as to speech on private property, or in traditional public fora. But when it opens its non-traditional-public-forum property, it's entitled to require that the groups that use it use it in nondiscriminatory ways. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Sunday, May 21, 2006 1:38 PMTo: religionlaw@lists.ucla.eduSubject: Re: Making a distinction Are you saying that the school districts in Lamb's Chapel and Good News Club could have lawfully sustained their desire not to rent school premises in off hours to religious organizations if, instead of saying "we will not rent to religious organizations,"they hadsimply established a rule that they would not rent to any organization that dicriminated on the basis of religion in the selection of its leaders? -- Daniel Bort-Original Message-From: Volokh, Eugene [EMAIL PROTECTED]To: Law Religion issues for Law Academics religionlaw@lists.ucla.eduSent: Sat, 20 May 2006 20:41:57 -0700Subject: RE: Making a distinction Lamb's Chapel and Rosenberger hold that, in a designated public forum (or even in a nonpublic forum), the government may not restrict speech based on its religiosity, because that constitutes discrimination based on the viewpoint of the speech. (There's a controversy about whether such a restriction should be seen as viewpoint-based, but that's what Rosenberger held.) When the government opens a designated public forum only to groups that don't discriminate on various grounds in their member or officer selection decisions, that's not a restriction that discriminates based on the viewpoint of the speech. It is a restriction that discriminates based on the groups' exercise of their expressive association rights, but I argue in the article I linked to that this should not be unconstitutional. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Ed Brayton Sent: Saturday, May 20, 2006 6:05 PM To: Law Religion issues for Law Academics Subject: Re: Making a distinction Volokh, Eugene wrote: It seems to me that, as a general matter, the government may deny benefits to groups that discriminate based on race, religion, sexual orientation, sex, etc.; I argue in my forthcoming Freedom of Expressive Association and Government Subsidies (Stan. L. Rev, http://www.law.ucla.edu/volokh/association.pdf) that such restrictions are permissible content-neutral (or at least viewpoint-neutral) definitions of a designated public forum. If I understand the reasoning behind the original North Carolina preliminary injunction (since dissolved on mootness grounds, I think, because of a change in UNC policy) correctly, it seems to me that it was mistaken. So I'm not sure there's anything that needs to be reconciled there. In some cases that involve similar facts, the court reasoned that the nondiscrimination policy was applied selectively, based on the actual viewpoints that the group expressed (so that groups that express certain viewpoints weren't allowed to discriminate but others were). That, I think, is right, if the facts support it; and it's consistent with the California marina case, because while content-neutral (or at least viewpoint-neutral) applications of nondiscrimination policies are OK, applications that are based on the viepwoint expressed by the group (rather than just by the group's expressive association decisions) are not. So where does that leave cases like Lamb's Chapel and Rosenberger? Neither is precisely on point, but Rosenberger is pretty close to the North Carolina situation, although I don't think it was really argued on the basis of non-discrimination law. Would you say that Rosenberger was decided incorrectly? Or Lamb's Chapel? Please pardon my amateur's understanding of the cases; I'm asking this to try and elevate that level of understanding. Ed Brayton
RE: Making a distinction
I usually agree with Eugene, but here I must disagree sharply. All expressive groups discriminate in a sense in choice of leaders based on consistency of the leaders' views with the groups' views. To say that groups that discriminate on the basis of religion in choice of leaders cannot use a forum but that groups that discriminate on other ideological bases in selection of leaders (e.g., on basis of belief in environmentalism) may use the forum is in fact to discriminate against religion. The use of the term discriminate to describe a religious group's decision to choose leaders who reflect the group's views is quite unfortunate, at least if we choose to extend to such choices the connotations of the word as it is used with respect to racial discrimination and other invidious forms of discrimination. It is only those connotations that provide the seeming justification of the state's discrimination. Of course the state's discrimination against religion should raise constitutional red flags that are not raised by a private group's choice of leaders, and thus in effect we have constitutional values being trumped by nonconstitutional values. Worse than that, we have nonconstitutional values (the desire to stigmatize religious discrimination in religious groups' choice of leaders) that trump not only the constitutional value of government viewpoint neutrality in public forums but also the constitutional value of freedom of religion. Freedom of religion requires that religious groups be able freely to choose leaders on religious grounds, without being penalized by the government for doing so. Mark Scarberry Pepperdine -Original Message- From: [EMAIL PROTECTED] To: Law Religion issues for Law Academics Sent: 5/21/2006 1:44 PM Subject: RE: Making a distinction I think the answer turns out to be yes, surprising as it might appear. Recall that these were designated public fora (at best) -- government property that the government had no obligation to turn over to any speakers. If the government opens the property to private speakers, then it may not discriminate in viewpoint-based ways (or in content-based ways, except when the content-based ways are necessary to enforce the government-defined limits of the forum). But the government may choose to open its property, I think, only to groups that make their programs -- and the programs' organizational committees -- open to people without regard to race, sex, sexual orientation, religion, and so on. That is a designation that's neutral as to the content of the group's speech, and as to the viewpoint of the group's speech. The government may not impose such a restriction as to speech on private property, or in traditional public fora. But when it opens its non-traditional-public-forum property, it's entitled to require that the groups that use it use it in nondiscriminatory ways. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Sunday, May 21, 2006 1:38 PM To: religionlaw@lists.ucla.edu Subject: Re: Making a distinction Are you saying that the school districts in Lamb's Chapel and Good News Club could have lawfully sustained their desire not to rent school premises in off hours to religious organizations if, instead of saying we will not rent to religious organizations, they had simply established a rule that they would not rent to any organization that dicriminated on the basis of religion in the selection of its leaders? -- Daniel Bort -Original Message- From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, 20 May 2006 20:41:57 -0700 Subject: RE: Making a distinction Lamb's Chapel and Rosenberger hold that, in a designated public forum (or even in a nonpublic forum), the government may not restrict speech based on its religiosity, because that constitutes discrimination based on the viewpoint of the speech. (There's a controversy about whether such a restriction should be seen as viewpoint-based, but that's what Rosenberger held.) When the government opens a designated public forum only to groups that don't discriminate on various grounds in their member or officer selection decisions, that's not a restriction that discriminates based on the viewpoint of the speech. It is a restriction that discriminates based on the groups' exercise of their expressive association rights, but I argue in the article I linked to that this should not be unconstitutional. -Original Message- From: [EMAIL PROTECTED] mailto:religionlaw-bounces%40lists.ucla.edu [ mailto:[EMAIL PROTECTED] mailto:religionlaw-bounces%40lists.ucla.edu ] On Behalf Of Ed Brayton Sent: Saturday, May 20, 2006 6:05 PM To: Law Religion issues for Law Academics Subject: Re: Making a distinction Volokh, Eugene wrote: It seems to me that, as a general matter, the
RE: Making a distinction
When the proffered distinction is that flimsy and enables such easy evasion of a constitutional right, the distinction announces itself as wrong. Campus political organizations are not forbidden to choose leaders or voting members on the basis of politics. When campus religious organizations are forbidden to choose leaders or voting members on the basis of religion, it is the equivalent of prohibiting religious organizations. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Sun 5/21/2006 3:44 PM To: Law Religion issues for Law Academics Subject: RE: Making a distinction I think the answer turns out to be yes, surprising as it might appear. Recall that these were designated public fora (at best) -- government property that the government had no obligation to turn over to any speakers. If the government opens the property to private speakers, then it may not discriminate in viewpoint-based ways (or in content-based ways, except when the content-based ways are necessary to enforce the government-defined limits of the forum). But the government may choose to open its property, I think, only to groups that make their programs -- and the programs' organizational committees -- open to people without regard to race, sex, sexual orientation, religion, and so on. That is a designation that's neutral as to the content of the group's speech, and as to the viewpoint of the group's speech. The government may not impose such a restriction as to speech on private property, or in traditional public fora. But when it opens its non-traditional-public-forum property, it's entitled to require that the groups that use it use it in nondiscriminatory ways. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Sunday, May 21, 2006 1:38 PM To: religionlaw@lists.ucla.edu Subject: Re: Making a distinction Are you saying that the school districts in Lamb's Chapel and Good News Club could have lawfully sustained their desire not to rent school premises in off hours to religious organizations if, instead of saying we will not rent to religious organizations, they had simply established a rule that they would not rent to any organization that dicriminated on the basis of religion in the selection of its leaders? -- Daniel Bort -Original Message- From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, 20 May 2006 20:41:57 -0700 Subject: RE: Making a distinction Lamb's Chapel and Rosenberger hold that, in a designated public forum (or even in a nonpublic forum), the government may not restrict speech based on its religiosity, because that constitutes discrimination based on the viewpoint of the speech. (There's a controversy about whether such a restriction should be seen as viewpoint-based, but that's what Rosenberger held.) When the government opens a designated public forum only to groups that don't discriminate on various grounds in their member or officer selection decisions, that's not a restriction that discriminates based on the viewpoint of the speech. It is a restriction that discriminates based on the groups' exercise of their expressive association rights, but I argue in the article I linked to that this should not be unconstitutional. -Original Message- From: [EMAIL PROTECTED] mailto:religionlaw-bounces%40lists.ucla.edu [mailto:[EMAIL PROTECTED] mailto:religionlaw-bounces%40lists.ucla.edu ] On Behalf Of Ed Brayton Sent: Saturday, May 20, 2006 6:05 PM To: Law Religion issues for Law Academics Subject: Re: Making a distinction Volokh, Eugene wrote: It seems to me that, as a general matter, the government may deny benefits to groups that discriminate based on race, religion, sexual orientation, sex, etc.; I argue in my forthcoming Freedom of Expressive Association and Government Subsidies (Stan. L. Rev, http://www.law.ucla.edu/volokh/association.pdf) that such restrictions are permissible content-neutral (or at least viewpoint-neutral) definitions of a designated public forum. If I understand the reasoning behind the original North Carolina preliminary injunction (since dissolved on mootness grounds, I think, because of a change in UNC policy)
