Re: A real-life on-campus example
It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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.
RE: A real-life on-campus example
The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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 list members can (rightly or wrongly) forward the messages to others.
Re: A real-life on-campus example
Marci says: It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Expressive association lies at the heart of freedom of speech and freedom of belief. It is not designed to protect dwindling religions from extinction. Christianity thrives in the catacombs. The CLS will survive attempts by Hastings to drive it off campus. The purpose of expressive association is to prevent govt from watering down or distorting the expressive beliefs of groups organized for the purpose of expressing those beliefs. Quite frankly, these attacks on the CLS on campus are driven by a kind of fundamentalism that has captured much, but not all, of academia. There is an established truth about human sexuality on campus, and any group that rejects that established dogma must be driven out of the on-campus marketplace of ideas. What is it about that established truth that leads people who normally praise open-mindedness to be so close-minded as to want to eradicate ideas that challenge it in the marketplace of ideas. I say let CLS and Outlaw meet on campus and let the marketplace of ideas decide which version of the truth is the true truth. 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.
RE: A real-life on-campus example
And since we are all going back and reading Elena Kagan's ruminations on the role of motive in assessing speech restrictions, we might ask what Hastings seeks to accomplish by prohibiting CLS from insisting upon its distinctive creed as a condition of leadership or voting membership. What work does its policy do in promoting the full participation of students in the life of the law school? The answer, it seems, is almost none. CLS events are open to nonadherents. Nonadherents can form groups of their own with equal access to whatever benefits are on offer. Hastings never believed - until now - that organization around a particular set of ideas diminishes the campus citizenship or opportunities of those who did not share them. (In fact, it apparently allowed La Raza to operate with a racial requirement for voting membership and leadership.) It seems clear that what Hastings want to do is to completely disassociate itself with CLS and to place it at a disadvantage vis-a-vis other groups. It wants to send a message to CLS that, to borrow Justice O'Connor's phrase, it is a disfavored member of the community. Hastings goal is not to create new opportunities for minorities but to step on a message that it does not like. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, May 12, 2010 9:11 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example 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 ___ 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.
Re: A real-life on-campus example
But is it a constitutional violation? I would tend to agree that the government ought to accommodate religious associations and give them equal access to government facilities and should grant religious associations exemptions from certain non-discrimination rules that apply to secular organizations. But, should this be a constitutional rule? Isn't the all comers rule a quintessential neutral rule of general applicability so religious organizations are bound by it? So no free exercise violation. Isn't a rule that says only those who abid by our non-discrimination policy are entitled to government benefits (like funding, certification, contracts) constitutional under every theory? And no one is stopping CLS or any other organization from freedom of association or freedom of speech. And Rosenberger shows how far freedom of speech can push the government to support religion. (If we apply Rosenberger we get the result that there is no establishment if the university exempts CLS, right?) So, those wanting to further constitutionalize church and state relations fail on the religion clause and equal protection, fail on freedom of association and freedom of speech grounds. So we come to a new version of constitutionalizing church and state relations -- government sponsorship of religious groups that discriminate on banned bases under an expressive association theory. (For you originalists, where is that in the constitution?) No. This battle belongs in the political processes, not in the Constitution. If the CLS case is so strong on the merits of fairness and equality and expression and association, why isn't it implemented through the political process? Because people are evil and out to get CLS? Nah. It is because people want to reduce discrimination on the basis of sexual orientation. But, like so many things, we tend to make such matters constitutional issues and so this is as well, no doubt. As a policy matter, I would exempt religious organizations from this particular non-discrimination, equal treatment requirement -- it really is not the same as race. But, I'm not at all sure I would reach the same result as a constitutional question. Religion is different and requires different treatment. Not all speech and association rules apply to trump that difference. Steve Jamar On May 13, 2010, at 8:32 AM, Esenberg, Richard wrote: The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu ] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A
Re: A real-life on-campus example
Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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 list members can (rightly or wrongly) forward the messages to others.
Re: A real-life on-campus example
Hastings is not stopping the message. It is stopping an action. It is not preventing CLS from saying anything it wants to say. It is preventing it from discriminating on a basis the university considers improper. Christian students are allowed full participation in the life of the law school. They can have a Christian student organization that doesn't exclude gays. Yes. Hasting wants to associate itself with a policy that an group advances -- but it is not prohibiting that group from disagreeing with it. It is just prohibiting that group from being a certified student organization because it discriminates unlawfully. If CLS allowed gays in, it could still publish such messages as it wants. Steve Jamar On May 13, 2010, at 9:01 AM, Esenberg, Richard wrote: And since we are all going back and reading Elena Kagan's ruminations on the role of motive in assessing speech restrictions, we might ask what Hastings seeks to accomplish by prohibiting CLS from insisting upon its distinctive creed as a condition of leadership or voting membership. What work does its policy do in promoting the full participation of students in the life of the law school? The answer, it seems, is almost none. CLS events are open to nonadherents. Nonadherents can form groups of their own with equal access to whatever benefits are on offer. Hastings never believed - until now - that organization around a particular set of ideas diminishes the campus citizenship or opportunities of those who did not share them. (In fact, it apparently allowed La Raza to operate with a racial requirement for voting membership and leadership.) It seems clear that what Hastings want to do is to completely disassociate itself with CLS and to place it at a disadvantage vis-a- vis other groups. It wants to send a message to CLS that, to borrow Justice O'Connor's phrase, it is a disfavored member of the community. Hastings goal is not to create new opportunities for minorities but to step on a message that it does not like. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu ] on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, May 12, 2010 9:11 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example 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
Re: A real-life on-campus example
Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. 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.
RE: A real-life on-campus example
Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices inconsistent with its expressive message or core beliefs. While in the public forum context, it might involve access to a government benefit but that is a function of the government's decision to establish a forum and the (quite reasonble rule) that, if it chooses to do so, it may not discriminate on the basis of viewpoint. This doesn't immunize religious organizations from the market place of ideas which, in any event, does not work as she thinks it does. Churches regularly impose creedal requirements on clergy, leaders and members. If congregants don't like it, they leave much as those who don't like CLS policy could leave as well. The problem with takeovers - whether effected through rules of a public forum or antidiscrimination laws - is that they would undermine the capacity of minority or, more specifically, unpopular groups to associate for a particular expressive purpose because, as soon as they choose to combine, they must be prepared, in this context, to permit others to come in and not simply expose their creed to the market place of ideas (that happens in all events) but to vote it out. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 7:09 AM To: Law Religion issues for Law Academics Subject: Re: A real-life on-campus example It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu Date: Wed, 12 May 2010 19:11:04 To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example ___ 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
Re: A real-life on-campus example
As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. 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.
RE: A real-life on-campus example
Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. 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.
RE: A real-life on-campus example
Marci Hamilton wrote: Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. I agree. Think of the Shakers, for example. Judy Baer ___ 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.
Re: A real-life on-campus example
Actually, it is not true that the government cannot or does not impose all-comer human rights policies on religions expecting government benefits outside Hastings. That is the core of the Bob Jones Univ case. That is why I raised race discrimination earlier Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 14:24:57 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu; Rick Duncannebraskalawp...@yahoo.com Subject: RE: A real-life on-campus example Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. 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
RE: A real-life on-campus example
Bob Jones tells us nothing about whether CLS associational rights would protect it from an all comers policy imposed through, say, the application of discrimination laws. Within the public forum context, however, it is not clear to me that permitting the government to forbid status discrimination means that it may also forbid viewpoint discrimination. CLS is not claiming the right to engage in status discrimination and I think we ought to pause before we elide the distinction. From: hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 10:01 AM To: Esenberg, Richard; Law Religion issues for LawAcademics; Rick Duncan Subject: Re: A real-life on-campus example Actually, it is not true that the government cannot or does not impose all-comer human rights policies on religions expecting government benefits outside Hastings. That is the core of the Bob Jones Univ case. That is why I raised race discrimination earlier Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 14:24:57 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu; Rick Duncannebraskalawp...@yahoo.com Subject: RE: A real-life on-campus example Marci wrote: Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. That restatement of your description is accurate, but your initial position which presumed that churches maintain open doors and are subject to the whims of whomever walks througn was not accurate. The market place for religion does not - at least not outside of Hastings - operate under government compulsion that churches take all comers. And, at least outside of the fading Protestant mainline (a phenomenom which may be instructive here), churches don't welcome all comers without regard to creed. It is certainly true that religion organizations are affected by the culture outside. That is, in fact, the insight of post-liberal theology. Religion is formed in community and is porous. But whether it is good or bad for religion to be affected by the mainstream culture is not, I think, a decision for the state to make - which is why the matter will inevitably raise constitutional questions. It seems to me that free exercise implies that minority religious groups are perfectly free to barricade the garden. Now, of course, if you believe that it is desireable to drive religious organizations into some sphere defined by a set of commonly held views, you'll see it differently. Rick Esenberg Marquette From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Thursday, May 13, 2010 8:49 AM To: Rick Duncan; Law Religion issues for Law Academics Subject: Re: A real-life on-campus example As I and others have said repeatedly, there is no censorship or suppression. No exclusion. Those are not the facts of this case In any event, I was speaking about the larger picture. I am interested in dis-covering the taboo that forbids us from discussing the obvious fact that religious groups are a part of the culture. And that they change. And that change can be good for religious groups. Marci Sent from my Verizon Wireless BlackBerry From: Rick Duncan nebraskalawp...@yahoo.com Date: Thu, 13 May 2010 06:34:38 -0700 (PDT) To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth.
RE: A real-life on-campus example
Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices
The Theft of the Mojave Cross
Has anyone thought about how the theft of the Mojave Cross will affect the legal issues on remand? Here are some recent factsan anonymous letter now claims that the cross was taken by a Veteran who rejects Justice Kennedys opinion and believes the cross should be removed and replaced with a more ecumenical symbol. http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html. (Thanks to Mary Jean Dolan for sending the link to me.) It seems to me though that the thiefs actions may lead to the opposite of what they intended. That is, I think the cross is now on a more secure footing than ever. Remember that plaintiffs counsel at oral argument conceded that, if the cross were taken down before the land transfer, the land transfer would then be consistent with the terms of the injunction. So now, if the VFW and the government just wait to replace the cross until after the land transfer goes through, the plaintiff would probably have no case. I mean, I think its possible to read the injunction (which bars the government from permitting the cross) as still inconsistent with the land transfer, but the plaintiff has already disavowed this reading and even Justice Ginsburg seemed to find it untenable. Final note: The last line of the anonymous letter reads, Perhaps this was an inappropriate form of protest if so I humbly request your forgiveness and understanding for the actions that I have taken here. I think the writer misunderstands the gravity of his or her actions. I would think that, among other things, removing the cross like this at least violates 18 U.S.C. § 1369, which gives up to a ten year sentence to whoever willfully injures or destroys a war memorial. Whoever did this needs to seek counsel immediately to hopefully give back the cross and negotiate a good resolution to this. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 ___ 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.
RE: A real-life on-campus example
Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased
RE: A real-life on-campus example
The lower courts in Gilmore had enjoined the city from allowing segregation academies-established to sidestep a public school integration order-any use of city facilities, including parks and zoos for field trips. The Court set aside this last part of the order on the grounds,inter alia,that it trenched on those schools associational rights,ie their right to associate with whites only. Why am I exaggerating when I ask whether Gilmore thus controls Hastings? It is true, as Ira notes, that much of Gilmore deals with a state action problem, especially with regard to exclusive uses of public property by private schools. But that was not the only holding of the case. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Thursday, May 13, 2010 12:27 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As
Re: A real-life on-campus example
On 5/12/2010 6:51 PM, hamilto...@aol.com wrote: 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? Well, not really. To begin with, there are congregational churches and hierarchical churches, and churches that fall sort of in the middle. In fact, there is no such thing as boilerplate bylaws for churches because they all differ. Anyway, with hierarchical churches, the church is controlled by the higher church authority (e.g. see the recent Episcopal cases). With congregational churches, where the members control, there is the question of who is a true member and has a right to vote. Normally the people have to be admitted; you do not generally become a member just by attending meetings. Sometimes the members have to take classes; generally they need to agree to a statement of faith. If someone does not do these things they can still attend the church, but they cannot vote at church meetings. I had one case that went to trial over who the members of the church were as of a specific date. The vast majority of church splits occur, not because someone doesn't like a pastor's sermons (as you said, that person will probably just find another church where he or she is more comfortable), but over some doctrinal issue. And courts cannot decide matters of church doctrine; they must decide cases on the basis of neutral principles of law. The case I mentioned re the members had to do with whether the church was going to remain a Christian Church/Church of Christ, or whether it was going to become a Pentecostal Church (and yes, new people came in and claimed (unsuccessfully) that they were members, in order to try to wrest the property away from the original church). 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. As set forth above, churches (and other religious groups) all have their own doctrines and beliefs, and generally require members to adhere to those beliefs. A statement of faith of a Christian church is going to be totally different from a new age type church. And there is no uniformity of beliefs between the various Christian churches. Doctrinal disputes have been going on, probably as long as there have been people to believe (if you get 5 rabbis together, you will probably end up with 6 opinions). The issue of sexual orientation is really a very recent dispute that has arisen in some religious organizations, and is only one item on a long list of beliefs, any one of which would disqualify someone from membership/leadership in the particular organization. Truly, most Christian groups do NOT spend most of their time on the issue of sexual orientation. Lisa 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 -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: A real-life on-campus example
Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). 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) ___ 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.
RE: A real-life on-campus example
Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:26:48 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf of Brownstein, Alan aebrownst...@ucdavis.edu) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Just to make sure I understand your argument, Chip. Is it your position that reasonableness is the appropriate standard of review in this case with regard to the CLS freedom of association claims because CLS associational freedom will not be substantially burdened by the Hastings policy? Or is there another reason why you believe a reasonableness standard of review is appropriate in this case and your analysis of the magnitude of the burden goes to the application of the standard. Are you analogizing the review of freedom of association claims challenging a broadly applicable policy to the review of content discrimination claims in a designated limited public forum? Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Thursday, May 13, 2010 8:11 AM To: Law Religion issues for Law Academics; hamilto...@aol.com; Esenberg, Richard Subject: RE: A real-life on-campus example Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the
Re: A real-life on-campus example
Rick-- This strikes me as your desired interpretation of the law, not the law as it stands. and it does not reflect the case. Yours and CLS's reasoning leads to an absolutely absurd result. When we have a court telling a university or law school that it cannot require all school-supported groups to include all students (if any student desires), as part of a mission to create open dialogue, then we might as well hand in our tenure and the academic freedom attached to it. As I said at the start, CLS's position is deeply anti-intellectual and requires one to buy into a Balkanized view of the universe. Years ago, I taught a seminar in Budapest with students from the Balkans. They described the disintegration of a shared culture this way. It used to be that when you got on the subway or the train, everyone was a fellow citizen, not a Jew or a Christian or a Muslim. Everyone shared some common ground and people were polite to each other regardless. Then, the disintegration started and people became very conscious of the religious identity of the person across the aisle and seated next to them. Once that crept into the mindset, you became very uncomfortable seated next to someone of a different religion, you distrusted other believers automatically, as part of the culture. I will never forget their sense of loss or their sincerity. I think CLS's position (as well as Wide Awake's position in Rosenberger) as being a step in that direction. In this era, we need far more effort to find common ground and ways for different believers to speak to each other. Exclusion in the academic context, where there is supposed to be wide-ranging, challenging discourse, seems precisely the wrong move. Marci -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, May 13, 2010 12:51 pm Subject: RE: A real-life on-campus example Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). 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) ___ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages 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.
RE: A real-life on-campus example
Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 13:59:20 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 09:26:48 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf of
RE: the stolen Mojave Desert cross
Some additional information re: the theft, the perpetrator, and his/her motives: http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 15:05:29 -0400 (EDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Ira (Chip) Lupu icl...@law.gwu.edu) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Thu, 13 May 2010 13:59:20 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that
