RE: A real-life on-campus example

[Scarberry, Mark]

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



 
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Re: A real-life on-campus example

[Hamilton02]

 
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




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RE: A real-life on-campus example

[Scarberry, Mark]

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  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)





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-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice 
(IIPSJ) Inc.

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Re: A real-life on-campus example

[Steven Jamar]

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 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.
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RE: A real-life on-campus example

[Rick Duncan]

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)





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RE: A real-life on-campus example

[Brownstein, Alan]

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" :

> 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

RE: A real-life on-campus example

[Douglas Laycock]

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" :

> 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 

RE: A real-life on-campus example

[Brownstein, Alan]

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.


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Any

RE: A real-life on-campus example

[Brownstein, Alan]

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 :

> 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 endles

RE: A question about the "must give religious exemptions to the same extent as secular exemptions" theory

[Will Linden]

Of course, this is another case of "the press juAt 01:11 PM 5/11/10 -0700, 
you wrote:
I was just reading the London Times and came across this 
item, which 
reminds me of Eugene's recent police leave hypo:


"Police officers have been given the right to take days off to dance naked 
on the solstices, celebrate fertility rituals and burn Yule logs if they 
profess pagan beliefs.


The Pagan Police Association claimed yesterday that it had been recognised 
by the Home Office as a “diversity staff support association” â€" a 
status also enjoyed by groups representing female, black, gay, Muslim and 
disabled officers.


Endorsement would mean that chief constables could not refuse a pagan 
officer’s request to take feast days as part of his or her annual leave. 
The eight pagan festivals include Imbolc (the feast of lactating sheep), 
Lammas (the harvest festival) and the Summer Solstice (when mead drinking 
and naked dancing are the order of the day).


Problematically, the pagan festivals also include Samhain (known to 
non-pagans as Hallowe’en), a day when police leave is often cancelled 
because of the high incidence of vandalism, violence and antisocial behaviour"



Cheers, 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)



--- On Tue, 5/11/10, Volokh, Eugene  wrote:


From: Volokh, Eugene 
Subject: RE: A question about the "must give religious exemptions to the 
same extent as secular exemptions" theory

To: "'Law & Religion issues for Law Academics'" 
Date: Tuesday, May 11, 2010, 12:20 PM

Then why can’t the tolerance for beards in employees whose 
medical conditions counsel against shaving be understood as “an 
affirmative policy” designed to help people who have a medical 
disability, and also to avoid disparate impact based on race?  (Recall 
that the underlying medical condition is much more common among blacks 
than among whites.)




I should think that, if a policy that discriminates between 
parents who send their kids to public schools and those who send their 
kids to private school is struck down, it would be because it 
discriminates against parents who exercise their Pierce parental 
rights.  In fact, if a school gave paid leave for parents to attend 
parent-teacher conferences in religious schools but not secular schools, 
I would think that this would unconstitutionally favor religion.  But 
even setting that aside, couldn’t one equally classify the 
hypothetical policy that allows paid leave for parents to attend 
parent-teacher conferences in public schools as “an affirmative policy 
designed to subsidize public schooling, and parenting of 
employees”?  That’s the problem with this “affirmative policy” / 
“exception” analysis â€" it seems entirely malleable, driven by the 
result courts want to reach rather than driving the result.




Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan

Sent: Tuesday, May 11, 2010 12:01 PM
To: Law & Religion issues for Law Academics
Subject: RE: A question about the "must give religious exemptions to the 
same extent as secular exemptions" theory




I  guess I just disagree that the parental leave policy would be viewed 
as an exception to the work-for-pay policy, rather than as an affirmative 
policy designed to subsidize childbirth and parenting of employees.


If the policy is an affirmative one (as I view it), then it is not 
underinclusive, because all parents with infants are covered.


How about a govt employer who allows paid leave for parents to attend 
parent-teacher conferences in public schools, but not private schools. If 
I am denied leave to attend a conference at my daughter's private 
religious school, do I have a Fr Ex claim under a law that is not 
generally applicable?




Cheers, 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)




--- On Tue, 5/11/10, Volokh, Eugene  wrote:


From: Volokh, Eugene 
Subject: RE: A question about the "must give religious exemptions to the 
same extent as secular exemptions" theory

To: "'Law & Religion issues for Law Academics'" 
Date: Tuesday, May 11, 2010, 11:30 AM

I think the analysis below mixes the purpose of the policy with the 
purpose of the exception.  Here’s how I see the structure of the 
policies at issue:


Purpose of the no beard policy:  To preserve uniformity of appearance.
Purpose of the medical exception