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.org>wrote: > 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.
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