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" 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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