David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.
But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.
As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.
I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ beliefs, not on the regulated groups’ speech or beliefs.
Now of course the university rule, while applicable to groups without regard to their content or viewpoints, does single out a certain kind of exercise of freedom of association rights, and deny it funding. But in the absence of discrimination based on a speaker’s viewpoint, the selective denial of funding to the exercise of certain constitutional rights is permissible (see my original post): The government may fund many medical procedures but not abortion, may give tax exemptions for donations that go to many kinds of speech but not electioneering, and so on.
That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. It just can’t discriminate based on speakers’ viewpoint in awarding subsidies; and, as I argue above, the nondiscrimination rules (if evenhandedly applied) don’t discriminate based on speakers’ viewpoint.
ShelbyC says:
Huh. Would you apply the same reasoning to a rule against discrimination based on other viewpoints? Say, a rule that that says groups can exclude people based on any viewpoint except their views on abortion?
December 11, 2009, 8:34 amYankev says:
At U MN Law School, the Jewish Student Caucus got around this by having its membership open to all students who supported the goals of the organization.
December 11, 2009, 10:24 amWe had a number of non-Jewish members, but then again, the goals of the organization were cultural and political — safeguarding the rights of Soviet Jews and Jewish prisoners in the US, preserving the free exercise and establishment clauses, etc. Despite this clause, a minority of the members of the Law School Student Council who tried to deny us a share of funding because in their minds we were a religious group. Oddly enough, those same few students did not associate with their Jewish classmates and had met few or no Jews before coming to law school (in the words of one, “I never met anyone Jewish before I started Law School, and now it seems every other person I meet is Jewish”. We estimated that abourt 10% of the student body and a bit less than 10% of the faculty was Jewish).
Yankev says:
Context ambiguity. Should ahve written:
December 11, 2009, 10:26 amsafeguarding the rights of Soviet Jews, safeguarding the rights of Jewish prisoners in the US, preserving the free exercise and establishment clauses, etc.
ox says:
Eugene — you need to explain why Dale doesn’t disrupt your analysis above. None of this will be persuasive until you explain why infringing freedom of association (even without intentional targeting of specific messages) isn’t also infringing freedom of speech. Or maybe you think Dale is wrong?
December 11, 2009, 11:34 amShelbyC says:
EV:
“That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. ”
Is there somewhere where you go into more detail about why a condition that triggers a fine or a tax is different than a condition that triggers an exclusion for a subsidy? I don’t see much difference, myself. I didn’t see much on that in the previous post.
December 11, 2009, 11:36 amShelbyC says:
I’m not Eugene, but Dale doesn’t disrupt his analysis because his analysis only entends to exculding conduct from subsidies, not banning it.
December 11, 2009, 11:42 amconfused says:
Prof. V., I’m not sure I understand how your allowance for an ideological group’s right-to-exclude plays out. If the environmental group can impose a “statement of beliefs,” can someone start a specific “Students against Gay Marriage Club” with a requirement that members share that policy goal? That doesn’t preclude gay members, as it “warmly invites” the oh-so-many gay members that oppose SSM.
So if it’s not even set up as a religion issue, but an “ideological” one whereby the group’s policy has a disparate impact on some groups named in the university’s non-discrimination policy, what happens? Is the university allowed to look at “club level” disparate impact without committing content discrimination itself (because its own university-level disparate impact, i.e., the impact of ITS policy as opposed to the impact of the club’s requirement), is not a problem?
If such an anti-SSM club is not allowed, why not? If it is allowed, what is different about the CLS, though it has broader purposes, too, having an anti-SSM filter, or anti-behavior filter, or whatever other filter that has a disparate impact (at the club level) but technically allows “inactive gays” (of the self-identified “ex-gay” or “I want to be cured soon” variety)?
December 11, 2009, 12:35 pmSandy says:
I posted this in the previous thread, but can a school say “no student group can exclude members on the basis of race, sex, or a student’s status as a supporter of the Democratic agenda”?
Can the school say “no student group can accept students who support the Republican agenda as members”? If not, why not? Just like the school doesn’t want to subsidize groups that exclude members on the basis of religious viewpoint, the school doesn’t want to subsidize groups that include members with a Republican viewpoint…
December 11, 2009, 12:42 pmChristian K says:
I think most reasonable people would agree that a university having specific rules about which religious organizations were to be allowed and which were not, or applying rules in an inequitable manner, would be “bad”. However, I would think that you would need to prove that either certain religious clubs were singled out for special treatment or that university rules were specifically designed to disadvantage a certain groups in order to show some “wrong doing” by the university. In fact wouldn’t a publicly funded university have even greater problems if they showed preferential treatment to religious organizations?
December 11, 2009, 12:47 pmThe Volokh Conspiracy » Blog Archive » Christian Legal Society v. Martinez and the Court’s University Speech Decisions says:
[...] of content-based but viewpoint-neutral rules, but that’s not important here. I explained in another post why the non-discrimination rule isn’t viewpoint– or [...]
December 11, 2009, 1:20 pmjrose says:
Let’s change your hypothetical a bit. What if the rule bars exclusions only for prospective members with pro-life beliefs (I don’t see any problem if the exclusion covers all abortion beliefs). Is that based on “the prospective members’ beliefs, not on the regulated groups’ speech or beliefs”, and thus has but a disparate impact against pro-choice groups? Or is it a pre-text for discriminating against pro-choice groups?
I’m not sure. On the other hand, I am sure that the religious anti-discrimination rule is easily justified by a judgment that religious discrimination is worse than most other bases for discrimination, and there is no pre-text that religious groups were targeted.
December 11, 2009, 1:26 pmjrose says:
As with my response to ShelbyC, the distinction is what justifies the rule. The religion-based rule is justified by views about the relative badness of religious discrimination and only happens to disparately impact religious groups. Can the same be said of your hypothetical rule, or is that a pre-text for supporting groups with a Democratic viewpoint?
December 11, 2009, 1:33 pmJeff Hall says:
So would it also be your opinion that the government can condition tax-deductibility of church and other non-profit income on a non-discrimination clause?
December 11, 2009, 1:55 pmShelbyC says:
Well, I still think the problem with that is that religion is itself a viewpoint, so a views about the relative badness about organizing based on a religious viewpoint aren’t viewpoint neutral.
December 11, 2009, 2:09 pmTweets that mention The Volokh Conspiracy » Blog Archive » Why No-Discrimination-Based-on-Religion Conditions for Government Benefits Aren’t Viewpoint-Discriminatory -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Why No-Discrimination-Based-on-Religion Conditions for Government Benefits Aren’t Viewpoint-Discriminatory: Dav.. http://bit.ly/6tdXOx [...]
December 11, 2009, 3:00 pmgxs says:
Prof V., I think the problem in your reasoning is in giving too little attention to the complexity inherent in the very category “religion.” You say nondiscrimination rules impose themselves without reference to content or viewpoint. But religion is, in significant part, a set of professed beliefs. Professed beliefs are speech, likewise an organization’s choice of someone with professed beliefs is speech. When a University sets up a forum for expressive associations, and says groups can’t express themselves by choosing people based on specific beliefs, it’s a restriction that references speech. Calling it “nondiscrimination” and saying that it is common in the list of nondiscrimination laws doesn’t wipe away that speech reference. And when the government’s list of prohibited discrimination categories is underinclusive, containing religion but not other beliefs, it becomes viewpoint discriminatory. The fact that environmentalist groups can apply an ideological litmus test while religious groups can’t is indeed proof of viewpoint discrimination. “Religion” doesn’t lose its speech-content quality just by the fact that is generally in some usual lists of nondiscrimination (yet exemptions themselves belie the instinct to treat religion exactly like race). I don’t think the court needs to say religion can never be in a nondiscrimination list. I think the court will say that when religion in a nondiscrimination list is (1) applied in its quality of beliefs (2) to a forum of associational expression (3) in an underinclusive way allowing other expressive ideological discrimination, that counts as viewpoint discrimination (and even without (3), it’s content discrimination).
December 11, 2009, 3:31 pmjrose says:
Wouldn’t that call into question every religion-based anti-discrimination rule, even Title VII of the Civil Rights Act (as it relates to religion).
December 11, 2009, 3:38 pmShelbyC says:
Well, IANAL, but my understanding of expressive association law is that only organizations with an expressive purpose are affected. So, for example, applying Title VII to churches would violate the 1A. Some states have laws outlawing discrimination on the basis of political views, but I don’t think they can apply those to organizations like newspapers. There was a case in Washington about that, IIRC.
December 11, 2009, 4:54 pmDavid Schwartz says:
How can “you may discriminate based on viewpoints X and Y, but not on viewpoint Z” possibly be viewpoint-neutral?!
“[I]t’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.”
I’m sorry, I can’t fathom how requiring others to treat religious beliefs as privileged over other beliefs can possibly be acceptable.
“The environmentalist group may exclude anti-environmentalists[.]”
Really? What if the anti-environmentalist’s views are based on Christian Dominionism Theology? Who gets to decide whether those beliefs are religious or not?
December 11, 2009, 5:12 pmDavid Bernstein says:
A rare occasion on which Eugene and I disagree! I can’t respond fully right now, but I don’t buy the analogy to federal civil rights laws. Such laws would indeed be unconstitutional when applied to expressive associations in a way that disrupted the organization’s ability to control its message. E.g., it would be unconstitutional to require the Knights of Columbus to admit non-Catholics to membership, or to force Chabad to hire members of Jews for Jesus to teach (even secular) subjects in its preschools.
December 11, 2009, 6:58 pmDavid Bernstein says:
(State universities, unlike the general government, can pass a a BLANKET rule requiring all organizations to be nondiscriminatory because such organizations are integral parts of the university’s educational program. But once a university violates that blanket rule, it can’t pick and choose which ideologies are better or worse and discriminate itself on that basis. The problem is not that the university is decreeing that discrimination based on religion is worse than other discrimination, but that its violating expressive association rights by preventing the organization from controlling its message).
December 11, 2009, 7:11 pmSandy MacHoots says:
I don’t know the nuances of constitutional law, but it seems that the argument is that discrimination on the basis of religion is so bad that we will give the religious groups less rights than we give non-religious groups. I must be missing something.
December 11, 2009, 9:48 pmjrose says:
Yes, anti-discriminationn statutes can be unconstitutional on an as-applied basis. But, Rosenberger found a subsidy is facially unconstitutional when it discriminates based on viewpoint. And you countered Eugene’s argument (the anti-discrimination rule is justified by the belief that religious discrimination is worse than other types of discrimination, is thus not targeted at any viewpoint and not viewpoint discrimination) is flawed because the justification itself (regardless of its lack of target) is facially viewpoint discrimination. If so, then all religious-category anti-discrimination statutes would be facially viewpoint discriminatory.
December 12, 2009, 8:55 amjrose says:
Yes, but because they abridge expressive association, not because they are examples of viewpoint discrimination. I agree with Eugene that the anti-discrimination statute analogy applies when determining whether there is viewpoint discrimination.
December 12, 2009, 9:16 amgxs says:
“Yes, but because they abridge expressive association, not because they are examples of viewpoint discrimination.”
Religion in anti-discrimination statutes is at minimum content discrimination when applied inconsistent with associational expression. This is because religion includes beliefs and ideas, as does associating with fellow believers. This is why things like the civil rights act has exceptions for religious groups–precisely in recognition that religion and associating with co-religionists is speech, so prohibiting discrimination on that basis is a restriction relating to speech content. And moreover, when religion is in the list of categories AND is applied to associational expression, BUT ideology is not, so that groups can discriminate on the basis of a variety of ideologies in an associational manner but not on the basis of the ideology of religion, then what you have is viewpoint discrimination.
So there is no dichotomy between saying the application of civil rights laws to interfere with association is viewpoint discrimation, and saying it merely abridges expressive association. To the extent it abridges “expressive” association, it is at least content based, and to the extent it singles out religious ideas for nondiscrimination but not political or other ideas, it is viewpoint discrimination.
December 12, 2009, 3:13 pmDavid Schwartz says:
Sandy MacHoots: That’s an amusing way to put it, but it’s not at all contradictory. Of course religious groups will be the most likely to try to restrict the religious freedoms of those who don’t agree with their group’s views.
December 12, 2009, 4:55 pmjrose says:
It’s possible the Court might have had found viewpoint discrimination, but it in relying on abridgement of expressive association, it never has. Thus, you are putting forth a new theory (as-applied viewpoint discrimination).
In the CLS case, the category in question wasn’t religion, but rather sexuality. In your opinion, is it still as-applied viewpoint discrimination?
December 12, 2009, 7:26 pmSandy MacHoots says:
And therefore religious groups should get less freedom than other kinds of groups. Yep, I did get it.
December 13, 2009, 8:03 pmgxs says:
Jrose–sorry for the delay, the answer to your question is yes for the same reason that the University defines “sexual orientation”-as-a-basis-for-nondiscrimination so broadly that the category, like religion, includes ideology. CLS doesn’t exclude from leadership-decision-making people who merely experience same-sex attraction, it only excludes from leadership-decision-making people who don’t adhere to CLS’s beliefs and behavior choices about such attractions. Those things are ideological, and therefore the University has added ideologies to its non-discrimination categories, which when applied to expressive associations means that it has added speech content to its nondiscrimination categories, and since it adds ideologies in an underclusive way so as to single out some disfavored ideologies while allowing discrimination on the basis of other ideologies, it is using its nondiscrimination ideological categories in a viewpoint discriminatory fashion.
December 15, 2009, 1:40 pm