RE: Why didn't Stormans bring a state free exercise claim?
In Pennhurst, the Supreme Court held that the Eleventh Amendment forbids federal courts from awarding injunctive relief against state officials on the basis of state law. This rule did not apply in Merced, where the plaintiffs sued municipal officials. Greg Baylor [Alliance Defending Freedom]<http://www.adflegal.org/> Gregory S. Baylor Senior Counsel, Director of Center for Religious Schools 202-393-8690 (Office) 202-888-7628 (Direct Dial) 202-347-3622 (Fax) gbay...@adflegal.org<mailto:gbay...@adflegal.org> ADFlegal.org<http://ADFlegal.org> Not Licensed in DC Practice Limited to Federal Court From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Tuesday, June 28, 2016 9:48 PM To: Law & Religion issues for Law Academics Subject: Why didn't Stormans bring a state free exercise claim? Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I believe the owners of Stormans could have brought both (1) a federal free exercise claim, which faced the challenge of getting past the Smith hurdle, and (2) a state free exercise claim under a Sherbert/Yoder-like exemption regime, which exists in Texas by virtue of a state RFRA and in Washington State by virtue of the state Supreme Court's interpretation of the Washington constitution. Unlike the plaintiff in Merced, who made both arguments and prevailed on their Texas RFRA claim, the owners of Stormans did not bring a state-law exemption claim. Does anyone on the list know why? - Jim This e-mail message from Alliance Defending Freedom and any accompanying documents or embedded messages is intended for the named recipients only. Because Alliance Defending Freedom is a legal entity engaged in the practice of law, this communication contains information, which may include metadata, that is confidential, privileged, attorney work product, or otherwise protected from disclosure under applicable law. If you have received this message in error, are not a named recipient, or are not the employee or agent responsible for delivering this message to a named recipient, be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message or its contents is strictly prohibited. If you have received this message in error, please immediately notify the sender and permanently delete the message. PRIVILEGED AND CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT. ___ 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: Zubik / Little Sisters - testing the scope via a hypothetical
So, under this approach, would a court be empowered to assess the magnitude of the divine disfavor a plan sponsor claims it would suffer if it complied with the mandate? Thanks. Greg Baylor [Alliance Defending Freedom]<http://www.adflegal.org/> Gregory S. Baylor Senior Counsel, Director of Center for Religious Schools 202-393-8690 (Office) 202-888-7628 (Direct Dial) 202-347-3622 (Fax) gbay...@adflegal.org<mailto:gbay...@adflegal.org> ADFlegal.org<http://ADFlegal.org> Not Licensed in DC Practice Limited to Federal Court From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 22, 2016 10:25 AM To: Law & Religion issues for Law Academics Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical Eric Kniffin writes that ". . . whether there is a substantial burden on a sincere religious belief is something courts can determine by looking at the force of the government’s compulsion." That's correct, but it's only half the story. Look at Yoder (on which RFRA declares it is modeled), in which most of the analysis on the burden side concerns the religious impact of the school attendance requirement, NOT the small daily fine for truancy. And read the many prisoner cases under RFRA and then RLUIPA, where the analysis is about the religious significance of the practice the prisoner wants permission to undertake -- prayer meetings, long hair or beards, possession of particular books, having certain foods, washing certain number of times per day, etc. In those cases, the government's "compulsion" is total -- permission denied. So the burden analysis goes to religious impact of the denial, and there are opinions that explore these questions (in part because the government's interest in denying permission may not be compelling at all.) The legislative history of RFRA shows that the word "substantial" was added to permit this kind of inquiry -- that is, into the severity of religious impact on the complainant. Why should claims of "conscience" be exempt from this element of the statute? On Tue, Mar 22, 2016 at 8:49 AM, Kniffin, Eric N. mailto:eknif...@lrrc.com>> wrote: Actually, Doug, I don't think the petitioners in Zubik ever "say that the courts cannot question what counts as a religious burden.” They merely insist that courts cannot question the substance of their sincere religious belief, a point I assume you would agree with. But this is not to deny the courts any role under the substantial burden test. For example, whether there is a substantial burden on a sincere religious belief is something courts can determine by looking at the force of the government’s compulsion. As the ETBU petitioners put it on page 47 of their opening brief (http://www.becketfund.org/wp-content/uploads/2016/01/Little-Sisters-Merits-Brief.pdf), “The substantial burden analysis turns on the substantiality of the pressure the government applies to compel the objected-to actions, not the physical or financial burdens of undertaking those actions.” Doug, do you think that's not the right test for substantial burden? If so, what is the right test? I thought the petitioners’ statement was pretty basic RFRA/RLUIPA law. Back to Michael’s park worker hypothetical, Doug is of course right that key question comes from Title VII: whether a reasonable accommodation could be fashioned without undue hardship to the employer. And to decide that question it is of course relevant what the employer has been willing to do for other workers. To make the analogy to Zubik work, we’ll have to post some more facts about the Seventh-day Adventist’s employer. We would need an employer who grants a complete religious exemption for some religious employees based on their relationship to their church (say those who were officers of their churches) but refuses to give the same treatment to others with the exact same religious objection (say those who are just members of their churches, but not officers). In that circumstance, the employer probably would and should have a pretty hard time claiming that this employee's religious objection cannot be worked around, when it is already working around the same objection for others. And the employer's argument would be weaker still if it had grandfathered in a bunch of other employees, etc. Eric Eric N. Kniffin Of Counsel 719.386.3017 office 719.386.3070 fax eknif...@lrrc.com<mailto:eknif...@lrrc.com> _ Lewis Roca Rothgerber Christie LLP 90 South Cascade Avenue, Suite 1100 Colorado Springs, Colorado 80903-1662 lrrc.com<http://lrrc.com/> On Mar 21, 2016, at 7:35 PM, Laycock, H Douglas (hdl5c) mailto:hd...@virginia.edu>> wrote: Some of these extreme cases will involve compelling govern
RE: Unpacking the Zubik case
I think there may be one mistake regarding East Texas Baptist University. Its cert petition (p. 14) says “ETBU is both the sponsor and administrator of its own self-insured plan.” I haven’t read the cert opp or the reply, and I don’t know if this comes up in either. Greg Baylor [Alliance Defending Freedom]<http://www.adflegal.org/> Gregory S. Baylor Senior Counsel, Director of Center for Religious Schools 202-393-8690 (Office) 202-888-7628 (Direct Dial) 202-347-3622 (Fax) gbay...@adflegal.org<mailto:gbay...@adflegal.org> ADFlegal.org<http://ADFlegal.org> Not Licensed in DC Practice Limited to Federal Court From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, November 09, 2015 7:50 AM To: Law & Religion issues for Law Academics Subject: Re: Unpacking the Zubik case In hopes that it will be of some assistance, I've pulled together a preliminary categorization of all 37 of the petitioners, based upon the representations in the cert.-stage briefs. Please let me know if you notice any mistakes: Categories of petitioners in the seven cases: Employers using insured employee plans (5) Priests for Life (14-1453) Catholic University of America (14-1505) (also uses insured student plan) Oklahoma Wesleyan University (15-119) Oklahoma Baptist University (15-119) (also uses insured student plan) Geneva College (15-191) (also uses insured student plan) Employers using insured student plans (4) Catholic University of America (14-1505) (also uses insured employee plan) Oklahoma Baptist University (15-119) (also uses insured employee plan) Southern Nazarene University (15-119) (also uses self-insured employee plan) Geneva College (15-191) (also uses insured employee plan) Employers using self-insured, TPA-administered, non-“church plan” employee plans (3) Thomas Aquinas College (14-1505) East Baptist University (15-35) Southern Nazarene University (15-119) (also has insured student plan) Employers using self-insured, TPA-administered “church plans” for employees, whose TPAs are not required to provide contraceptive coverage (18) Catholic Charities of the Diocese of Pittsburgh, Inc. (14-1418) St. Martin Center, Inc. (14-1418) Prince of Peace Center, Inc. (14-1418) Erie Catholic Preparatory School (14-1418) Consortium of Catholic Academies of the Archdiocese of Washington, Inc. (14-453) Archbishop Carroll High School, Inc. (14-453) Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. (14-453) Mary of Nazareth Roman Catholic Elementary School, Inc. (14-453) Catholic Charities of the Archdiocese of Washington, Inc. (14-453) Victory Housing, Inc. (14-453) Catholic Information Center, Inc. (14-453) Houston Baptist University (15-35) Westminster Theological Seminary (15-35) Little Sisters of the Poor Home for the Aged of Denver (15-105) (whose primary plan TPA--Christian Brothers Services—already has promised not to provide contraceptive coverage even if Little Sisters opts out) Little Sisters of the Poor, Baltimore, Inc. (15-105) Reaching Souls International, Inc. (15-105) Truett-McConnell College, Inc. (15-105) Mid-America Christian University (15-119) Wholly exempt entities that “sponsor” church plans for other employers (3) Roman Catholic Diocese of Pittsburgh, Inc. (14-1418) Roman Catholic Diocese of Erie (14-1418) Roman Catholic Archbishop of Washington (14-1505) Directors of wholly exempt entities that “sponsor” church plans for other employers (2) The Most Reverend David A. Zubik (14-1418) The Most Reverend Lawrence T. Persico (14-1418) Directors of an employer (Priests for Life) using an insured employee plan (3) Father Frank Pavone (14-1453) Alveda King (14-1453) Janet Morana (14-1453) Employee church plans themselves (2) Christian Brothers Employee Benefit (15-105) GuideStone Financial Resources of the Southern Baptist Convention (15-105) An employee church-plan TPA (1) Christian Brothers Services (15-105) (CBS has already said it will not provide contraceptive coverage if requested to do so) 37 petitioners total (four of which use both employee and student plans) On Sun, Nov 8, 2015 at 4:54 PM, Marty Lederman mailto:lederman.ma...@gmail.com>> wrote: FYI -- I hope some of you might find this helpful: http://balkin.blogspot.com/2015/11/who-is-zubik-in-zubik-v-burwell-and-why.html This e-mail message from Alliance Defending Freedom and any accompanying documents or embedded messages is intended for the named recipients only. Because Alliance Defending Freedom is a legal entity engaged in the practice of law, this communication contains information, which may include metadata, that is confidential, privileged, attorney work product, or otherwise protected from disclosure under applicable law. If you have received this message in error, are not a named recipient, or are not the
RE: For-Profit Corporations and the Section 702 Exemption
For what it’s worth, the EEOC compliance manual<http://www.eeoc.gov/policy/docs/religion.html#_Toc203359493> indicates that not-for-profit status is a “significant factor” in the analysis, although “no one factor is dispositive.” It cites Townley and Kamehameha. [Alliance Defending Freedom]<http://www.alliancedefendingfreedom.org/> Gregory S. Baylor Senior Counsel 202-393-8690 (Office) 202-888-7628 (Direct Dial) 202-347-3622 (Fax) gbay...@alliancedefendingfreedom.org<mailto:gbay...@alliancedefendingfreedom.org> www.alliancedefendingfreedom.org<http://www.alliancedefendingfreedom.org> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 10, 2015 3:40 PM To: Law & Religion issues for Law Academics Subject: Re: For-Profit Corporations and the Section 702 Exemption True enough; but if recollection serves, all three judges write a great deal about the importance of the for-profit/nonprofit distinction. On Tue, Mar 10, 2015 at 3:31 PM, Doug Laycock mailto:dlayc...@virginia.edu>> wrote: World Vision is a more recent review of the cases. But World Vision is a non-profit. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman Sent: Tuesday, March 10, 2015 3:14 PM To: Law & Religion issues for Law Academics Subject: Re: For-Profit Corporations and the Section 702 Exemption the split decision in World Vision is probably more relevant now than Townley, FWIW: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/01/25/08-35532.pdf On Tue, Mar 10, 2015 at 2:58 PM, Christopher Lund mailto:l...@wayne.edu>> wrote: Does anyone have any cases addressing the applicability of the Section 702 exemption to for-profit employers? The Section 702 exemption, remember, is what exempts religious groups from the federal ban on religious discrimination in hiring. I have the 9th Circuit decision in Townley Engineering (1988). But I didn't know if there were other lower court cases, and figured the listserv might be a good resource. Thanks! Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu<mailto:l...@wayne.edu> (313) 577-4046 (phone) (313) 577-9016 (fax) Website-http://law.wayne.edu/profile/christopher.lund/ Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 ___ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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. This e-mail message from Alliance Defending Freedom and any accompanying documents or embedded messages is intended for the named recipients only. Because Alliance Defending Freedom is a legal entity engaged in the practice of law, this communication contains information, which may include metadata, that is confidential, privileged, attorney work product, or otherwise protected from disclosure under applicable law. If you have received this message in error, are not a named recipient, or are not the employee or agent responsible for delivering this message to a named recipient, be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message or its contents is strictly prohibited. If you have received this message in error, please immediately notify the sender and permanently delete the message. PRIVILEGED AND CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/
RE: Faith tests okayed for campus Christian group at ASU
Title: Message How would you apply your stated legal rules to CLS chapters at public law schools? Do they "threaten the integrity and the harmony of an institutional community" such that a public law school could legally de-recognize them? If so, is it also true that individuals threaten the integrity and harmony of the community when they hold and express the view that (1) the claims of theologically conservative Christianity are true; and (2) same-sex sexual intimacy is morally wrong? If so, what actions could public law schools take against such individuals without violating the Constitution? Did gay student groups, the SDS, and student chapters of the ACLU threaten the integrity and harmony of public educational communities in the 1960s, 1970s, and 1980s in a way that justified public universities' treatment of those groups? In other words, were all these courts wrong when they held that public universities violated the student groups' constitutional rights? Thanks. Greg Baylor -Original Message-From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 25, 2005 11:40 AMTo: [EMAIL PROTECTED]; Law & Religion issues for Law AcademicsSubject: RE: Faith tests okayed for campus Christian group at ASU I find the CLS Statement of Faith a poor substitute for the Nicene Creed. It is not acceptable, at least to this Catholic, and I would never sign it, and I would urge Catholics not to sign it. I think that there is a proper legal basis, rooted in the Religion Clauses, for distinguishing between secular groups and religious groups. I also think that there is a proper legal basis for debarring groups who threaten the integrity and the harmony of an institutional community. (Recall that many of us are not comfortable with some of the claims made by some chaplains that military community, discipline, and troop morale are subordinate to the chaplains’ sense of what their religion requires.) Accordingly, it is altogether possible that some religious groups should be disbarred for breaching conduct restrictions. Institutional life, civility, comity and harmony have to count for something. From: Gregory S. Baylor [mailto:[EMAIL PROTECTED] Sent: Monday, October 24, 2005 7:51 PMTo: 'Law & Religion issues for Law Academics'Subject: RE: Faith tests okayed for campus Christian group at ASU For what it's worth . . . Those who drafted the CLS statement of faith intended it to be acceptable to people in the Protestant and Roman Catholic traditions. The current executive director of CLS is a Roman Catholic, and there are a number of Roman Catholics on the CLS board of directors. Greg Baylor ___ 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: Faith tests okayed for campus Christian group at ASU
Title: Message
Neither CLS organizationally nor I personally are big fans of
Smith. We joined a very diverse coalition of organizations that
supported the congressional response to Smith (RFRA). We urged
the Supreme Court to uphold RFRA in Boerne. After Boerne, we
sought to re-assemble the RFRA coalition to support a bill called RLPA. Our
efforts were unsuccessful, in part because certain groups had changed their
minds about the relative importance of religious freedom and gay rights; they
were concerned that theologically and morally
conservative litigants might invoke RFRA to defend against the
application of sexual orientation non-discrimination rules.
A
number of courts have attempted to apply Smith's hybrid rights theory,
and a number of them have confronted the intellectual "shakiness" of the theory,
sometimes along the precise lines you identify. Given the unexpected nature of
Justice Scalia's identification of "hybrid rights" theory, it is hard to
evaluate which interpretation of the theory is the "correct" one. I doubt there
is much value in my personal musings about which interpretation of the hybrid
rights theory is "correct."
That
being said, I think it is fair to say that if hybrid rights theory is
relevant to any fact pattern, it is relevant to the fact pattern presented by
the CLS chapter cases. The quoted language makes that relatively clear.
Furthermore, it is my view that, as a matter of a good faith
application of the case law, courts should apply strict scrutiny to a public law
school's decision to derecognize a CLS chapter on the ground that the chapter's
leadership and voting membership criteria violate a school ban on religious
and/or sexual orientation discrimination. The application of strict
scrutiny is compelled by a number of distinct lines of cases, including : (1)
those involving viewpoint discrimination; (2) those involving ejection of an
otherwise eligible speaker from a speech forum; (3) those involving burdens on
the right of expressive association; and (4) those involving the free exercise
of religion and some other constitutionally protected
interest.
Moreover, I think a court would be wrong if it concluded that
government has a compelling interest in the eradication of religious and sexual
orientation "discrimination" by religious groups.
Greg
Baylor
-Original Message-From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Alan BrownsteinSent: Monday, October 24, 2005
8:28 PMTo: Law & Religion issues for Law
AcademicsSubject: RE: Faith tests okayed for campus Christian group
at ASU
Greg, would you mind
telling us what you think that language you quoted from Smith means. I can think of two
possibilities. On the one hand, it may mean that when freedom of association
doctrine requires the application of strict scrutiny review to state action
that interferes with a secular organization’s freedom of association, courts
should apply that same rigorous standard of review when it is a religious
organization’s associational freedom that is burdened. But if that is what the
language means, the Free Exercise Clause adds nothing to the analysis and does
not seem to have any reinforcing effect. Alternatively, it may mean that that
when freedom of association doctrine does not require the application of strict
scrutiny review to state action that interferes with a secular organization’s
freedom of association, courts should nevertheless apply strict scrutiny
review when it is a religious organization’s associational freedom that is
burdened. If that is what the language means, religious groups receive greater
protection for their associational freedom than similarly situated secular
groups. Are you suggesting that either of these understandings of hybrid
rights is correct – or is there some other way to understand what Scalia’s
hybrid rights language means?
Alan
Brownstein
UC
Davis
From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Greg BaylorSent: Monday, October 24, 2005 10:14
AMTo: Alan Brownstein;
'Law & Religion issues for Law
Academics'Subject: RE: Faith tests okayed for
campus Christian group at ASU
I agree that courts
have struggled to implement Justice Scalia's "hybrid rights" concept.
Interestingly, in the
section of his Smith opinion discussing
so-called "hybrid rights," Justice Scalia stated as
follows:
And it is easy to envision a case in
which a challenge on freedom of association grounds would likewise be
reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees,
468 U.S. 609, 622, 104 S.Ct. 3244, 3251-52, 82 L.Ed.2d 462 (1984) ("An individual's freedom to speak, to
worship, and to petition the government for the redress of grievances could
not be vigorously protected from interference by
RE: Faith tests okayed for campus Christian group at ASU
Title: Message "State sanction" strikes me as a loaded phrase. "Sanction" implies "approval" or "affirmation" or "imprimatur." What the CLS chapters are seeking is access to a forum for speech that is open to, in many cases, literally hundreds of student groups. None of the law schools that have de-recognized CLS chapters are choosing a select number of student groups for some sort of special treatment. Southern Illinois University, for example, recognized 404 student groups. When gay student groups challenged their de-recognition by public universities in the 1970s and 1980s, would it have been accurate to say that they wanted "state sanction" despite their unwillingness to comply with a generally applicable rule not to advocate immoral conduct? After all, that "rule" applied to "everyone else" -- every student group that wanted recognition. Put differently, were these courts wrong when they held that held that public universities violated the constitution by denying gay student groups benefits available to other student groups? Greg Baylor -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Monday, October 24, 2005 8:19 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Faith tests okayed for campus Christian group at ASUCLS can form a group if they comply with the same rules as everyone else. The question is not whether they can form a compliant group, but whether the constitutional freedom of religion requires the state university to allow a non-compliant group to have state sanction. Maybe it does. As a matter of policy I would prefer state universities give more latitude rather than less, but as a matter of constitutional law, I'm not sure that they are required to do so. Steve On Oct 24, 2005, at 7:42 PM, Scarberry, Mark wrote: At some point I may have time to respond in detail to Michael's long post. For now, suffice it to say that what the CLS chapters are asking for from the state universities is the ability to form a group, to reserve a room, and to put up posters advertising their meetings. None of that goes beyond what other campus groups want, and none of it is "overweening importuning." -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "Any intelligent fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction." Albert Einstein ___ 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: Faith tests okayed for campus Christian group at ASU
Title: Message For what it's worth . . . Those who drafted the CLS statement of faith intended it to be acceptable to people in the Protestant and Roman Catholic traditions. The current executive director of CLS is a Roman Catholic, and there are a number of Roman Catholics on the CLS board of directors. Greg Baylor -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, MarkSent: Monday, October 24, 2005 7:42 PMTo: 'Law & Religion issues for Law Academics'Subject: RE: Faith tests okayed for campus Christian group at ASU At some point I may have time to respond in detail to Michael's long post. For now, suffice it to say that what the CLS chapters are asking for from the state universities is the ability to form a group, to reserve a room, and to put up posters advertising their meetings. None of that goes beyond what other campus groups want, and none of it is "overweening importuning." Members of CLS chapters may do other things that Michael does not like, such as initiating conversations with other students in an attempt to convince them to "come to Christ." But none of that other activity has anything to do with whether students have the right to form CLS groups, reserve rooms, and advertise their meetings. The state does not have a right to be hostile to a religious group because that group seeks to spread its faith. If the means used to spread faith are unprotected (e.g., true threats, harassment of various sorts, indiscriminate use of loudspeakers), then those means can be prohibited or regulated. But the government cannot determine that a particular religious group is not entitled to associate, to meet, and to publicize its meetings on an equal footing with other groups. I can't believe Michael really believes that the state university can allow a Catholic group to be formed and to meet, an environmentalist group to be formed and to meet, and a feminist group to be formed and to meet, but refuse to allow a CLS group to be formed and to meet. (By the way, I believe Catholics are welcome along with Protestants to participate fully in CLS groups and do indeed participate. I don't believe there is anything in the CLS statement of faith that a Catholic Christian would find objectionable. See http://clsnet.org/clsPages/statement.php. I will ask about this point at the annual CLS conference to be held this weekend in Naples, Florida, which seems to have survived the hurricane.) Michael is right to be unhappy about the history of de facto Protestant establishment in the public schools and about the resistance of Protestants to funding of alternative Catholic schools. Wasn't Americans United for Separation of Church and State once named Protestants and Other Americans United for Separation of Church and State? Anti-catholic, anti-immigrant sentiment was a key factor in our legal history. But that does not mean that the government now may act discriminatorily against Protestant (or more broadly Christian) groups. Mark S. Scarberry Pepperdine University School of Law -Original Message-From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Monday, October 24, 2005 3:59 PMTo: Law & Religion issues for Law AcademicsSubject: RE: Faith tests okayed for campus Christian group at ASU Mark, we may disagree as to the facts. I take evangelical Protestantism seriously enough to have faith, if that be the word, in the desire of its adherents to proselytize all of the rest of us. The unique history of the English Reformation -- perhaps better described, as I have elsewhere, as the Anglo-American Reformation -- gives evangelical Protestantism its distinctive character. Evangelicals have been exasperated, for centuries now, by the fact of Anglicanism, and their inability to turn Anglicanism into "purified" evangelical Protestantism. The desire to "purify" English or Anglo-American Protestant religion lies at the core of the spirit and force of evangelical Protestantism. I cannot accept, therefore, without ignoring almost 500 years of history, the notion that CLS is not interested in doing what Anglo-American evangelical Protestants have wanted to do for 500 years - covert everybody to their religion, "purify" Protestantism, Anglicanism in particular, but, while we are at it, Catholicism, Orthodoxy, and various and sundry non-Christian religions. This constant, steady and unyielding desire to "purify" is precisely the "overweening importuning" to which I referred. It doesn't end with the posters, to which you referred. It merely begins with them. Furthermore, I cannot believe that something that has been deeply engrained in a religion for half a millennium has somehow dissipated, or, as the
RE: Faith tests okayed for campus Christian group at ASU
Title: Message In our representation of CLS chapters, we have consistently invoked Healy. Healy is cited in the Seventh Circuit's grant of our motion for injunction pending appeal of a federal district court's denial of our motion for preliminary injunction in our lawsuit against Southern Illinois University officials. (The appeal itself was argued Wednesday.) In the wake of Healy, a number of lower federal courts held in the '70s and '80s that public universities (UNH, VCU, Texas A&M, etc.) violated the constitutional rights of gay student groups and ACLU student chapters by denying them recognition and benefits. It is no small irony that these cases support the legal claims of theologically conservative Christian groups that have been de-recognized in recent days. Greg Baylor -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Thursday, October 20, 2005 10:16 PMTo: religionlaw@lists.ucla.eduSubject: Faith tests okayed for campus Christian group at ASU In all the posts on the issue of imposing nondiscrimination rules on campus religious groups, no one has mentioned Healy v. James, 408 U.S. 169 (1972). That case held unanimously (Rehnquist concurred with reservations) that withholding official recognition and use of university facilities from a proposed campus chapter of SDS substantially burdened the right to freely associate for expressive purposes, and that recognition could be withheld only on the basis of the substantial disruption standard in Tinker v. Des Moines Community School District (U.S. 1969). There are a couple of references to the college's authority to require SDS to agree to comply with reasonable campus rules, but the context for those statements was rules about physical disruption, not rules about nondiscrimination. And of course the Court could only mean constitutionally valid rules. Boy Scouts v. Dale suggests a broad right of expressive associations to control their membership; so do some of the cases on internal affairs of political parties (although their rights are more limited because of their perform state functions and and the two big parties often get special privileges in the election process). The right of churches to control their own membership has not been litigated, but surely that is because they so obviously must have such a right. Healy v. James does not directly answer the question about discrimination rules, but it does answer the questions about what right is at stake here and whether the claim to recognition depends upon a forum, etc. For those too young too remember, SDS was Students for a Democratic Society, a leftist student group formed in 1964 with high ideals, some of whose members soon turned violent -- some of them seriously violent. When I once mentioned Healy v. James in answer to a question from the legal counsel to a very senior United States Senator, he asked, "What's SDS?" I was initially dumbstruck, but I learned. Some of us on this list are getting old. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) ___ 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: Faith tests okayed for campus Christian group at ASU
Title: Message I would argue that under cases like BSA v. Dale, a rule forbidding a religious organization from taking religious belief and extramarital sexual conduct into account in its personnel decisions infringes upon the religious organization's right of expressive association and, therefore, that the government in such a circumstance would be required to provide a compelling justification. Prof. Jamar is correct that some of these cases involve "a benefit that need not be given at all." I may be misreading him, but I believe he is suggesting that the government may withhold benefits under a rule that it could not apply to the party in question by virtue of a direct regulation of behavior (as opposed to a condition on access to a benefit). If I am reading him correctly, I believe that this argument conflicts with existing precedent. The Supreme Court has repeatedly applied strict scrutiny to rules governing access to government benefits, e.g., Speiser v. Randall, Perry v. Sindermann, O'Hare Trucking, Velazquez v. LSC, etc. In other words, I do not agree with Prof. Jamar's apparent assertion that these non-discrimination rules are not subject to strict scrutiny because they do not target religion or religious groups. [Note that even as a matter of Free Exercise Clause law, these rules are subject to strict scrutiny despite Smith given that they burden hybrid rights.] Are these arguments not correct, as a matter of existing case law? Thanks. Greg -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Thursday, October 20, 2005 6:02 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Faith tests okayed for campus Christian group at ASUI agree that compellingness is lost when very few government entities adopt such laws or when many others exempt certain organizations from needing to comply. So the state could not overcome any constitutional restriction based on compelling state interest analysis. However, a state does not need a compelling state interest just to pass and enforce a law that is not otherwise unconstitutional. And it is not an unconstitutional law just because it does to some degree burden someone's religious practices or just because someone is excluded from a benefit that need not be given at all when that person's religious practices will not allow it to conform to that law. As I see it we don't need to get past a constitutional bar here because there is none. This law is not targeting religion or religious groups. As a matter of policy there probably should be an exemption in the law. But that does not mean the constitution requires the exemption in this instance. I would argue it does not, though I would rather see the policy be otherwise within the law. Steve On Oct 20, 2005, at 5:38 PM, Gregory S. Baylor wrote: I agree with the first sentence of Prof. Jamar's post. I was just suggesting that if a court concluded that the application of such non-discrimination rules to a religious group burdened its constitutional rights -- and therefore reached the question whether those burdens were justified -- the court might find the existence of these exemptions to be relevant. In other words, I believe that the existence of these exemptions undermines any argument that the government's interest in eradicating religious and sexual orientation "discrimination" by religious organizations is compelling. Greg Baylor -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "There is no cosmic law forbidding the triumph of extremism in America." Thomas McIntyre ___ 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: Faith tests okayed for campus Christian group at ASU
Title: Message I agree with the first sentence of Prof. Jamar's post. I was just suggesting that if a court concluded that the application of such non-discrimination rules to a religious group burdened its constitutional rights -- and therefore reached the question whether those burdens were justified -- the court might find the existence of these exemptions to be relevant. In other words, I believe that the existence of these exemptions undermines any argument that the government's interest in eradicating religious and sexual orientation "discrimination" by religious organizations is compelling. Greg Baylor -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Thursday, October 20, 2005 4:30 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Faith tests okayed for campus Christian group at ASUJust because some state exempts religious organizations from liability for some forms of discrimination does not mean that all states must do so or that all types of discrimination that the religious organization claims impinge on its claim of boundless latitude in its actions need to be permitted. The Constitution does not give carte blanche and states have some ability to regulate in this area. Nonetheless, I think wiser policy is to exempt certain organizations from the reach of such laws, but that is not the same as saying that the government is prohibited by the constitution from acting foolishly. Steve On Oct 20, 2005, at 1:11 PM, Gregory S. Baylor wrote: Regarding Prof. Jamar's question about racially discriminatory groups, there are some relevant cases. A number of state agencies have rejected the KKK's application to participate in "Adopt-a-Highway" programs, and the KKK has sued. I cannot recall off the top of my head how all of these cases have come out, but I do know that the Eighth Circuit held that Missouri violated the KKK's constitutional rights. The name of the case is Cuffley v. Mickes. The Thurmont case from Maryland is also relevant. In any event, it is easy to imagine courts differentiating between race discrimination -- even by groups whose discrimination is the core of their message -- on one hand and religious & sexual orientation "discrimination" by religious groups on the other. As a matter of statutory law, legislatures universally exempt religious organizations from bans on religious and sexual orientation discrimination. This strongly suggests that the government lacks a compelling interest in stopping religious organizations from taking religious belief and sexual conduct into account in their personnel decisions. One can easily imagine a court concluding that the government does have a compelling interest in eradicating race discrimination. In our view, the fact that CLS chapter might be permitted to form or associate or speak, as Prof. Jamar observed, does not dispose of the constitutional question. The non-discrimination rules are invoked to deny CLS chapters access to limited public fora created by public universities for the benefit of studeng groups. As I read the student group forum cases (Widmar, Rosenberger, Good News Club), the Court does not even consider what privileges the excluded groups continued to possess; it focuses on what they have been denied (i.e., access to the forum). In addition, in each of these cases, the government is conditioning access to a benefit upon compliance with a rule that, if obeyed, would undoubtedly undermine the CLS chapter's right of expressive association (among others). The fact that the CLS chapter can avoid this burden by eschewing recognition and attendant benefits does not make the government's rule constitutionally permissible. Greg Baylor Gregory S. Baylor Director, Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 703-642-1070 x3502 703-642-1075 (fax) [EMAIL PROTECTED] http://www.clsnet.org ___ 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: Faith tests okayed for campus Christian group at ASU
The Executive Committee of Christian Legal Society's board of directors adopted a resolution germane to our discussion. That resolution refers to "all acts of sexual conduct outside of God's design for marriage between one man and one woman." Therefore, the couple's relationship must fall within God's design for marriage rather than the state's definition of marriage. The Executive Committee's resolution does not deal with interfaith marriage, and I am unaware of any concrete situation in which a CLS chapter or CLS national has confronted this question. [It is undoubtedly true that many local churches have confronted situations like this.] Your question is theological and ecclesiastical; as to the legal question, I do not believe that the legal analysis of such a situation would be different. Greg Baylor Gregory S. Baylor Director, Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 703-642-1070 x3502 703-642-1075 (fax) [EMAIL PROTECTED] http://www.clsnet.org -Original Message- From: Lupu [mailto:[EMAIL PROTECTED] Sent: Thursday, October 20, 2005 12:47 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Cc: [EMAIL PROTECTED] Subject: RE: Faith tests okayed for campus Christian group at ASU I very much appreciate the quick and candid response, Greg, but I (and I expect others on the list) would also appreciate an explanation of it. Is it that the couple must meet the group's definition of (Christian) marriage, rather than the state's definition of marriage? May (and would) the group similarly exclude the Christian member of an interfaith marriage (say, a Christian married to a Jew)? Chip On 20 Oct 2005 at 12:32, Gregory S. Baylor wrote: > The couple you describe would not be eligible for leadership or voting > membership. > > Greg Baylor > > Gregory S. Baylor > Director, Center for Law and Religious Freedom > Christian Legal Society > 8001 Braddock Road, Suite 300 > Springfield, VA 22151 > 703-642-1070 x3502 > 703-642-1075 (fax) > [EMAIL PROTECTED] > http://www.clsnet.org > > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Lupu > Sent: Thursday, October 20, 2005 10:24 AM > To: Law & Religion issues for Law Academics > Subject: RE: Faith tests okayed for campus Christian group at ASU > > > What would a CLS campus group do in Massachusetts, if a same- sex > married couple wanted to join (perhaps even lead), and was fully and > sincerely willing to commit to the belief that sexual relations are > acceptable only inside of marriage? > > Chip > On 19 Oct 2005 at 18:14, Scarberry, Mark wrote: > > > > > This issue comes up repeatedly on the list. Viewpoint discrimination > > is the least permissible form of speech regulation by the state. > > Campus groups are expressive associations. When the state university > > says that groups that hold certain beliefs can form expressive > > associations but that others cannot, the state generally is engaging > > in viewpoint discrimination. To deny a group the ability to choose > > its > > > leaders (and perhaps its members) on the basis of their beliefs is > > to deny a group the ability to form an expressive association. That > > is true whether those beliefs have to with environmentalism, > > feminism, or > > > traditional Christianity. > > > > Enforcement of antidiscrimination policies that effectively prevent > > formation of religious groups (by prohibiting them from limiting > > leadership positions, and perhaps membership, to those who sincerely > > hold the same religious beliefs) is thus almost always a violation > > of free speech rights. Conduct - such as refraining from sexual > > relations > > > outside marriage - is a test of sincerity of belief, though not of > > course a perfect indicator of belief. My guess is that the CLS group > > happily would admit as a member a gay Christian who sincerely agreed > > with its religious belief that same sex sexual conduct is wrong, > > even if that person from time to time failed to live up to that > > belief. Similarly, a group devoted to racial harmony would likely > > admit to membership someone who sincerely believed in its ideals, > > even if the person from time to time had difficulty living up to > > those ideals. But > > > perhaps each group should be permitted to apply its own standard for > > sincere belief. > > > > Employment Division of Oregon v. Smith does not validate viewpoint > > discrimination against religious views. Note that Smith was deci
RE: Faith tests okayed for campus Christian group at ASU
Title: Message Regarding Prof. Jamar's question about racially discriminatory groups, there are some relevant cases. A number of state agencies have rejected the KKK's application to participate in "Adopt-a-Highway" programs, and the KKK has sued. I cannot recall off the top of my head how all of these cases have come out, but I do know that the Eighth Circuit held that Missouri violated the KKK's constitutional rights. The name of the case is Cuffley v. Mickes. The Thurmont case from Maryland is also relevant. In any event, it is easy to imagine courts differentiating between race discrimination -- even by groups whose discrimination is the core of their message -- on one hand and religious & sexual orientation "discrimination" by religious groups on the other. As a matter of statutory law, legislatures universally exempt religious organizations from bans on religious and sexual orientation discrimination. This strongly suggests that the government lacks a compelling interest in stopping religious organizations from taking religious belief and sexual conduct into account in their personnel decisions. One can easily imagine a court concluding that the government does have a compelling interest in eradicating race discrimination. In our view, the fact that CLS chapter might be permitted to form or associate or speak, as Prof. Jamar observed, does not dispose of the constitutional question. The non-discrimination rules are invoked to deny CLS chapters access to limited public fora created by public universities for the benefit of studeng groups. As I read the student group forum cases (Widmar, Rosenberger, Good News Club), the Court does not even consider what privileges the excluded groups continued to possess; it focuses on what they have been denied (i.e., access to the forum). In addition, in each of these cases, the government is conditioning access to a benefit upon compliance with a rule that, if obeyed, would undoubtedly undermine the CLS chapter's right of expressive association (among others). The fact that the CLS chapter can avoid this burden by eschewing recognition and attendant benefits does not make the government's rule constitutionally permissible. Greg Baylor Gregory S. Baylor Director, Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 703-642-1070 x3502 703-642-1075 (fax) [EMAIL PROTECTED] http://www.clsnet.org -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Wednesday, October 19, 2005 9:46 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Faith tests okayed for campus Christian group at ASUI'm no fan of Smith or Rosenberger. And the field is problematic, to put it mildly. But, why must the state fund an organization dedicated to violating its lawful rules? Not just speaking about them or believing them to be wrong, but violating them in conduct? The discrimination is not based on belief, but on action. They are excluding people on a basis the state has said is improper if the group wants state benefits. It does not stop the group from existing. It does not stop anyone from believing as they wish. But where is the constitutional requirement that the group get the money from the state? As a matter of policy at the school, I would want to allow greater latitude for such organizations, but that would be a matter of policy as adopted by the school, not a matter of Constitutional restrictions. A matter of accommodation by policy, not by constitutional requirement. The problem isn't with beliefs in the abstract or beliefs in something that is a lawful basis for discrimination, but rather with actions based on beliefs where those actions violate the policies. The groups are not being denied the right to form or to associate or to speak. They are being denied state benefits because they are violating a constitutional law. If the rule is the other way, where does it end? What distinguishes discriminating against people with a certain status of homosexuality from discriminating against people of another status like race or gender once the state has decided that that form of discrimination is unlawful? If we allow the one, how can we not allow the KKK to be a recognized religious organization that excludes Jews, Catholics, and Blacks? I am serious. How do you make that case? Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "To see a World in a Grain
RE: Faith tests okayed for campus Christian group at ASU
Title: Message In our view, Mark is correct that the Free Speech Clause's ban on viewpoint discrimination prevents a public university's application of religion and sexual orientation non-discrimination policies to religious groups with leadership and membership criteria like CLS's. We also argue that the application of such policies to CLS chapters violates their right of expressive association, as interpreted in cases like Boy Scouts of America v. Dale. In addition, the application of such policies to CLS chapters is subject to strict scrutiny under the hybrid rights theory of the Free Exercise Clause. We contend that government lacks a compelling interest in forbidding CLS chapters to take religion and sexual conduct into account in their leadership and voting membership selection processes. Greg Baylor Gregory S. Baylor Director, Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 703-642-1070 x3502 703-642-1075 (fax) [EMAIL PROTECTED] http://www.clsnet.org -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, MarkSent: Wednesday, October 19, 2005 9:14 PMTo: 'Law & Religion issues for Law Academics'Subject: RE: Faith tests okayed for campus Christian group at ASU This issue comes up repeatedly on the list. Viewpoint discrimination is the least permissible form of speech regulation by the state. Campus groups are expressive associations. When the state university says that groups that hold certain beliefs can form expressive associations but that others cannot, the state generally is engaging in viewpoint discrimination. To deny a group the ability to choose its leaders (and perhaps its members) on the basis of their beliefs is to deny a group the ability to form an expressive association. That is true whether those beliefs have to with environmentalism, feminism, or traditional Christianity. Enforcement of antidiscrimination policies that effectively prevent formation of religious groups (by prohibiting them from limiting leadership positions, and perhaps membership, to those who sincerely hold the same religious beliefs) is thus almost always a violation of free speech rights. Conduct - such as refraining from sexual relations outside marriage - is a test of sincerity of belief, though not of course a perfect indicator of belief. My guess is that the CLS group happily would admit as a member a gay Christian who sincerely agreed with its religious belief that same sex sexual conduct is wrong, even if that person from time to time failed to live up to that belief. Similarly, a group devoted to racial harmony would likely admit to membership someone who sincerely believed in its ideals, even if the person from time to time had difficulty living up to those ideals. But perhaps each group should be permitted to apply its own standard for sincere belief. Employment Division of Oregon v. Smith does not validate viewpoint discrimination against religious views. Note that Smith was decided in 1990, and that Lamb's Chapel and Good News Club (both prohibiting such viewpoint discrimination) were decided in 1993 and 2001, respectively. Consider also the Christian publication that the Court in Rosenberger held could not be denied funding by Univ. of Virginia on an equal basis with secular student publications. How to get around Rosenberger? Deny student groups the right to choose leaders (or even members) based on religious beliefs; then no Christian student group can exist to seek funding for a Christian student publication! No, no, no. Preventing formation of groups that have a particular religious viewpoint that they wish to express is at least as clear a violation of free speech rights as is the discrimination against their _expression_ that is impermissible per Rosenberger. Mark S. Scarberry Pepperdine University School of Law -Original Message-From: Steven Jamar [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 19, 2005 4:54 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Faith tests okayed for campus Christian group at ASU Behavior is less protected than beliefs. The group can believe whatever it wants to believe, but cannot exclude homosexuals or bisexuals by behavioral proxy even if their religious belief says to do so. Or if they choose to so exclude them, then they cannot expect the government to support them if the government has a policy of non-discrimination against homosexuals. As far as the slippery slope argument -- never been a fan of that one. The question is not whether some undefined "others" would define godly behavior differently from a particular sect, but whether t
RE: Faith tests okayed for campus Christian group at ASU
The couple you describe would not be eligible for leadership or voting membership. Greg Baylor Gregory S. Baylor Director, Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 703-642-1070 x3502 703-642-1075 (fax) [EMAIL PROTECTED] http://www.clsnet.org -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Lupu Sent: Thursday, October 20, 2005 10:24 AM To: Law & Religion issues for Law Academics Subject: RE: Faith tests okayed for campus Christian group at ASU What would a CLS campus group do in Massachusetts, if a same- sex married couple wanted to join (perhaps even lead), and was fully and sincerely willing to commit to the belief that sexual relations are acceptable only inside of marriage? Chip On 19 Oct 2005 at 18:14, Scarberry, Mark wrote: > > This issue comes up repeatedly on the list. Viewpoint discrimination > is the least permissible form of speech regulation by the state. > Campus groups are expressive associations. When the state university > says that groups that hold certain beliefs can form expressive > associations but that others cannot, the state generally is engaging > in viewpoint discrimination. To deny a group the ability to choose its > leaders (and perhaps its members) on the basis of their beliefs is to > deny a group the ability to form an expressive association. That is > true whether those beliefs have to with environmentalism, feminism, or > traditional Christianity. > > Enforcement of antidiscrimination policies that effectively prevent > formation of religious groups (by prohibiting them from limiting > leadership positions, and perhaps membership, to those who sincerely > hold the same religious beliefs) is thus almost always a violation of > free speech rights. Conduct - such as refraining from sexual relations > outside marriage - is a test of sincerity of belief, though not of > course a perfect indicator of belief. My guess is that the CLS group > happily would admit as a member a gay Christian who sincerely agreed > with its religious belief that same sex sexual conduct is wrong, even > if that person from time to time failed to live up to that belief. > Similarly, a group devoted to racial harmony would likely admit to > membership someone who sincerely believed in its ideals, even if the > person from time to time had difficulty living up to those ideals. But > perhaps each group should be permitted to apply its own standard for > sincere belief. > > Employment Division of Oregon v. Smith does not validate viewpoint > discrimination against religious views. Note that Smith was decided in > 1990, and that Lamb's Chapel and Good News Club (both prohibiting such > viewpoint discrimination) were decided in 1993 and 2001, respectively. > Consider also the Christian publication that the Court in Rosenberger > held could not be denied funding by Univ. of Virginia on an equal > basis with secular student publications. How to get around > Rosenberger? Deny student groups the right to choose leaders (or even > members) based on religious beliefs; then no Christian student group > can exist to seek funding for a Christian student publication! No, no, > no. Preventing formation of groups that have a particular religious > viewpoint that they wish to express is at least as clear a violation > of free speech rights as is the discrimination against their > expression that is impermissible per Rosenberger. > > Mark S. Scarberry > Pepperdine University School of Law > > > -Original Message- > From: Steven Jamar [mailto:[EMAIL PROTECTED] > Sent: Wednesday, October 19, 2005 4:54 PM > To: Law & Religion issues for Law Academics > Subject: Re: Faith tests okayed for campus Christian group at ASU > > Behavior is less protected than beliefs. The group can believe > whatever it wants to believe, but cannot exclude homosexuals or > bisexuals by behavioral proxy even if their religious belief says > to do so. Or if they choose to so exclude them, then they cannot > expect the government to support them if the government has a > policy of non-discrimination against homosexuals. > > > As far as the slippery slope argument -- never been a fan of that > one. The question is not whether some undefined "others" would > define godly behavior differently from a particular sect, but > whether the state's definition of the limits of exclusion on the > basis of status and behavior would apply to particular sects or > whether they get an exception to the generally applicable neutral > rule. > > > > I am no fan of Smith, but i
