Volokh, Eugene wrote:
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?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.
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.
