David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:
I want to focus my response on one item [from Volokh’s previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:
The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which ... subsidizes ... racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial discrimination. Of course, that doesn’t mean the individuals don’t get their feelings hurt when they’re excluded from organizations, but that doesn’t provide a pretext for state action.
One of my favorite examples of these kinds of real-world controversies is an old one from a private school, Central College in Iowa. There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case). The student was enraged when he was asked to step down, but — honestly — did he have a reasonable expectation that he should be permitted to lead? Is it invidious discrimination for a Christian student group to ask that its leaders be Christian?
As an aside, while the current debate is centered around the ability of groups to exclude based on sexual-conduct rules and beliefs regarding sexual conduct, not all religious disputes deal with sex. Under the Ninth Circuit’s ruling in Martinez, the university would find itself in the middle of discrimination complaints based on the finer points of theology, if — to take from a real-world example — a student group had a dispute over the doctrine of justification. Or what if a student group wanted to expel a malicious Fred Phelps-type pseudo-religious lunatic? Is it really the role of the university to step in and tell CLS that they have to keep such malignant individuals in their midst?
Even further, where is the state interest in forced inclusion when excluded individuals have the right to form competing student groups, seek student-fee funding, and gain access to facilities? In other words, they have the right to confront what they perceive to be bad speech with their own, better speech?
Regardless of the framework for deciding Martinez — whether it’s the Seventh Circuit’s Healy-based associational analysis, the Ninth Circuit’s forum analysis, or something else entirely — the question of state interest will come up. And at that point, CLS can rely not just on common sense, but on a long line of Supreme Court precedent acknowledging (and protecting) the right of private organizations to form around shared beliefs and to enforce rules that protect the integrity of their message.
The bottom line? There’s a qualitative legal and moral distinction between invidious racial discrimination and a religious group’s asking that its members share the groups’ religious beliefs. I believe (and hope) the Supreme Court will see (and recognize) that distinction.
It seems to me that Title VI wasn’t limited to “invidious” discrimination in the sense of discrimination motivated by hatred, hostility, or a desire to harm. An Armenian-American organization, for instance, that only benefits Armenian-Americans — not because its managers dislike others but because they feel a special concern for the welfare of their own group — would be covered. It may well be that, especially in 1964, most instances of race, color, and national origin discrimination were motivated by hostility; but certainly not all were, yet the law covered discrimination generally, without any special inquiry into its motivation. (This was in some measure modified by Bakke’s interpretation of Title VI in 1978, but even after that proof of hostility is not required for Title VI to apply.) Likewise, Title IX’s extension of Title VI principles to many forms of sex discrimination applies to discrimination that isn’t motivated by hatred, hostility, or a desire to harm.
Likewise, it seems to me that there is an eminently conceivable, and legitimate, state interest in denying government funds to groups that discriminate based on religion, sexual orientation, and such, even when the discrimination is “commonsense” and “mission-based.” It is reasonable and legitimate for the state to say that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion — even noninvidious fashion — which subsidizes religious or sexual orientation discrimination. And this is so even though some of the applications of this prohibition would apply to discrimination that isn’t motivated by hatred, hostility, or a desire to harm, but is itself commonsense and mission-based. The government may choose not to subsidize the exercise of the right to discriminatory expressive association, even when the discrimination is perfectly well-motivated, just as the government may choose not to subsidize electioneering or substantial amounts of lobbying, even though such electioneering or lobbying may be perfectly well-motivated.
As I’ve said before, I think the decision to completely exclude groups that discriminate from subsidies is unwise, for some of the very reasons that Mr. French gives. I think universities should allow university-funded groups to discriminate in ways that further their missions, especially based on religion (which as an ideology is especially important to maintaining certain groups’ mission) but also based on sexual orientation, race, sex, and the like. Allowing this would likely actually enhance the options available to students, and enhance the intellectual diversity of the marketplace of ideas in universities. But that I would make a certain choice doesn’t make the alternative choice on the university’s part inconceivable or illegitimate.
Finally, if one is using the broader definition of “invidious” to mean “offensive” or “objectionable,” the result is the same: A state may reasonably take the view that it’s offensive or objectionable for public funds, to which taxpayers and students of all religions and sexual orientations contribute, to be spent in any fashion which subsidizes religious or sexual orientation discrimination, even though Mr. French and I might not see it as offensive or objectionable (for instance for the reasons that Mr. French gives.
Hans says:
If Professor Volokh concedes it is obviously “unwise” to prevent a school religious group from choosing its leaders based on religion, why is it “reasonable” for the state to ban it from doing so, and why does it have a “legitimate” interest in banning it under an overbroad antidiscrimination policy?
Thus, even if David French’s reasoning is wrong, why isn’t his conclusion that such bans are arbitrary and unconstitutional correct?
More importantly, why is a mere “legitimate” interest enough to justify such a ban? Even if a truly “compelling” interest is not required for the ban — on the grounds that the ban is not content-based and the ban is simply for university-funded or university-hosted groups, and not all groups — why is not something above a mere legitimate interest (rational basis review) not required?
No one has a vested “right” to a broadcast license just as no one has a “right” to college funds. But more than mere rational-basis review has been held by the DC Circuit to apply to even some non-content based distinctions applied to broadcasters (See its ruling in a case involving News America / News American / a Rupert Murdoch entity).
In any event, a group’s selection of its leaders — as opposed to its members — does directly implicate the group’s freedom of expression under both Free Exercise “voice of the church” jurisprudence, and Equal Access Act cases like Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996) (school district could not prevent religious student group operating on school grounds from choosing its leaders based on religion; that was illegal under federal law).
That means that something more substantial than a “legitimate state interest” should be required to apply such bans to religious student groups.
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December 21, 2009, 10:48 amSara says:
“a school religious group”
A state funded religious group, Hans? This is America, correct?
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December 21, 2009, 10:54 amJohnF says:
Almost all groups organize themselves by some shared characteristic of their members. The characteristic might be shared national origin (e.g. various [country of origin]-American Leagues), shared race, shared religion, shared beliefs, or shared goals. Quite logically, they all discriminate on the basis of that characteristic. A very large percent of these could not lawfully be government programs.
But that does not answer the question whether the government can provide support for such organizations, e.g., through the use of its property (such as the town green used for creches and menorahs). For this, we simply require some fashion of even-handedness, without favoritism.
There is obviously something of a conceptual shift when it comes to funding as opposed to more passive approaches like letting a group use your lawn, but I think it is just a question of degree, and barely that. Even the “passive” approach confers an economic benefit on the group (e.g., the fair rental value of the green that is used for a religious display).
It seems to me we only have two choices here: either the government keeps its activities completely separate from groups which the government could not run as its own program (which means no creches on the green any more), or we recognize the propriety of some support for such groups, provided it is administered in an even-handed way. I do not think trying to slice things as fine as Eugene is trying here can work.
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December 21, 2009, 10:57 amRandy says:
There are really two issues.
1. Should a funded student group be able to deny membership or ability to participate in any activities to anyone?
2. Should a funded student group be able to deny a leadership role to anyone?
Prof Volokh doesn’t see a distinction (or doesn’t make one), but I do. Of course, I believe it is reasonable, as in the Central College case, that an organization should be able to choose its own leaders without state interference. I would hope that most organizations do a thorough vetting during the selection of leader process, but if someone *becomes* an atheist while president of the Christian Club, I can see grounds for dismissal. (Assuming Christian Club is duly recognized and funded by mandatory student fees, or taxpayer dollars).
Not so with just regular membership or participation. If same Christian Club meets every thursday in Room 222, atheists and gays and should be able to attend. Likewise if Gay Group meets in Room 224, and is also duly recognized, Christians and homophobes should be able to attend. If either group has a field trip, like a hiking expedition, then all should be able go on such a trip.
Perhaps the issue can be solve by simply enforcing a charter for all student groups that explain this — and also explain their mission — and that have a proviso that if a leader is elected who is deemed contrary to the groups charter and mission, they are eligible for removal, and then have a removal process built in.
In this way, all are protected– everyone can participate, but no group has to worry about a take-over by some invidious group.
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December 21, 2009, 11:00 amSara says:
So your saying, John, that churches and mosques and temples may legally be supported by State funds?
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December 21, 2009, 11:01 amDangerMouse says:
The underlying policy is to destroy Christianity, in any way, shape or form, by any means possible, and there is no legal principle at stake here. Today’s reasoning seems to be “Christian groups can’t use public resources because they discriminate!” So instead of public resources being open to all, they’re denied to anyone who doesn’t agree with the specific policies being promoted by the parties (and judges) in power. Tomorrow’s reasoning might very well be “open displays of Christianity by those who work for the public are offensive and such people should be punished!”
Or maybe students will be expelled for praying.
Eugene, don’t delude yourself into thinking there are legitimite questions of policy at stake here. There aren’t. Wake up and smell the coffee.
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December 21, 2009, 11:06 amRandy says:
Hans: “In any event, a group’s selection of its leaders — as opposed to its members — does directly implicate the group’s freedom of expression under both Free Exercise “voice of the church” jurisprudence, and Equal Access Act cases.”
Good point, Hans.
Prof: “There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case).”
Was the student expelled from the group altogether, or just asked to step down?
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December 21, 2009, 11:08 amMichelle Dulak Thomson says:
Well, that’s a first! I agree entirely with Randy.
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December 21, 2009, 11:09 amHans says:
Randy’s distinction has considerable force (Randy’s comment above noting that there are really two separate issues as to such clubs, one involving their selection of leaders, and the other as to members).
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December 21, 2009, 11:11 amSara says:
Central College is a private school. I don’t see the relevance.
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December 21, 2009, 11:11 amPatHMV says:
I still say that the answer to all this is to recognize simply that racial discrimination has such a terrible heritage in this country, which affected a large segment of the population and manifested itself in such evil ways that it very nearly destroyed the union of the states permanently. This renders it unique, in this country, and entirely distinguishable from sex discrimination, sexual orientation discrimination, religious discrimination, etc., etc. We should recognize this fact and make it clear that while this particular evil was pervasive and strong enough to overcome our otherwise strong respect for the right of free association, discrimination based on other factors does not cause such grave social harm (wrong as it generally is) to such extent as to justify similar legal protections.
So I say let the law stick to prohibiting discrimination based on race, and let the market and other social forces deal with the remainder of any discrimination, invidious or otherwise.
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December 21, 2009, 11:15 amSara says:
I disagree, Pat. State support and non-support of religion has an even deeper relationship to civil life and history in America.
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December 21, 2009, 11:19 ampete says:
That is pretty much how the Christian group I helped to run in college worked. Anyone could attend and was encouraged to attend and we had homosexual members even though the organization did not allow non-celibate homosexuals in leadership positions. We also had members of other religions and people with no particular religion, but they were not allowed to run the group. Many Christian campus groups exist to proselytize so it would not make sense to not allow athiests or people of other religions to attend meetings or events.
And at least in my experience we never had anyone apply for a leadership position that was not eligible and I was one of the people in charge of getting new leaders for two years.
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December 21, 2009, 11:21 amRandy says:
Sara: “Central College is a private school. I don’t see the relevance.”
The relevance is that educational systems should encourage education, regardless of whether they are publicly or privately funded. A private school can of course have the right to allow discriminatory groups on campus, but it would be unwise to do so. Let a thousand flowers bloom! An atheist who is allowed to attend meetings of the Christian Club provides a learning experience for all.
Once you leave the college, you have plenty of opportunities to join ‘confirmation clubs’, clubs in which you can exclude anyone you like and be surrounded by like minded people of your own choosing. you have the rest of your life to do so. But it is the purpose and function of universities to allow students the right to explore things beyond their limited world view. If the Christian Club welcomes all, including atheists, the atheist might actually convert to being a Christian. A coup, right? Or, the Christian Club member might learn that not all atheists are satan worshippers with no morals.
If your campus club is so insecure that it cannot withstand even the mere presence for one meeting of someone who might have a different viewpoint, then I’d say you have bigger problems to worry about than the threat of a takeover. If your campus club must institute a purity of thought test for all members, I would find that far more dangerous and invidious than any other group trying to take it over.
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December 21, 2009, 11:23 amSara says:
It’s still not relevant, Randy, because State funding is not involved.
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December 21, 2009, 11:26 amRandy says:
Pete: “And at least in my experience we never had anyone apply for a leadership position that was not eligible and I was one of the people in charge of getting new leaders for two years.”
This is another important point that Loki and I made earlier. There just isn’t much interest in taking over a group. Most students are far too busy in other matters than to do waste their time doing such a thing. It’s a solution in search of a problem.
” the organization did not allow non-celibate homosexuals in leadership positions.” Glad to hear that your religious groups were reasonable. My only question would be whether the celibacy rules were applied to heterosexuals as well, as sex outside of marriage rules would require that *all* your leaders be virgins. If the exclusionary rule applies to gays, it should apply to straights as well. in other words, I would object if there was one rule for gays and a different one for straights. Was that the case in your college?
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December 21, 2009, 11:30 amDangerMouse says:
If your campus club is so insecure that it cannot withstand even the mere presence for one meeting of someone who might have a different viewpoint, then I’d say you have bigger problems to worry about than the threat of a takeover. If your campus club must institute a purity of thought test for all members, I would find that far more dangerous and invidious than any other group trying to take it over.
Give me a frigging break. This has nothing to do with meeting people with different viewpoints, which happens often. Takeover is a legitimite concern by such groups, considering that everything including the kitchen sink has been thrown at them. Do you think you’re fooling anyone?
But this gets to another problem with the left: that which isn’t forbidden is now required. It’s now required that your group accept people wishing to fundamentally subvert it and overthrow it.
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December 21, 2009, 11:33 amRandy says:
Sara: “It’s still not relevant, Randy, because State funding is not involved.”
As I said, they have a legal right to discriminate. (However, if the school collects manadatory students fees, then I would think there is an issue regarding my student fees funding an organization that prevents me from even attending a meeting).
I am merely saying that it is unwise to do, and deprives their own students of their optimal educational experience. If you disagree, then we just have to agree to disagree.
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December 21, 2009, 11:33 amPatHMV says:
Sara, that’s true, but beside the point in this context. I’m certainly not for repealing the establishment and free exercise clauses. What we’re getting at here, though, is state interference in the activities of private groups. I am only arguing in my previous post that the government should not by law prohibit private individuals and groups from discriminating on the basis of religion; indeed I think the more it does that, the closer the government comes to treading across the establishment and the free exercise clauses.
I don’t generally agree that providing meeting space for campus groups and determining which are “recognized” officially is the same as state-funding of such entities. The Supreme Court has said that if, for example, a school makes meeting space available for student clubs generally, it cannot then prohibit similar, faith-based clubs from making the same use of the space. To do otherwise would be, the Court says, to discriminate unconstitutionally on the basis of religion. How could it be consistent with those precedents to say: “yes, you have to let the Christian Athletes meet on campus, but if they want to do so, they have to be open to all religions and can’t really be “Christian”?
Eugene, am I missing something here? It’s been some time since I looked at those precedents. But if I’m understanding your argument correctly, you’re saying that the schools can constitutionally condition their recognition of these groups (and the access to campus facilities and such that come with such recognition) because it’s funding, and thus the funds can be conditioned on things which it could not otherwise mandate. But the government can’t generally “fund” religious activities. So how does your argument (if I’m understanding it right, which I may not be) square with those precedents which say that if you let the non-religious clubs meet, you’ve got to allow the religious clubs to meet under the same terms?
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December 21, 2009, 11:34 amRandy says:
Dangermouse: “Takeover is a legitimite concern by such groups.”
If you actually read my post, and that of Pete, you would see that we both agree that leadership positions can be discriminatory, and if there were an attempted takeover, a removal process can be included in the charter.
“The underlying policy is to destroy Christianity, in any way, shape or form, by any means possible.”
And gosh, it still keeps spreading....
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December 21, 2009, 11:36 amSara says:
“I am merely saying that it is unwise to do, and deprives their own students of their optimal educational experience. If you disagree, then we just have to agree to disagree.”
I leave the wisdom of that policy to the private school. Presumably, they are private for a reason.
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December 21, 2009, 11:38 amSara says:
“I don’t generally agree that providing meeting space for campus groups and determining which are “recognized” officially is the same as state-funding of such entities.”
I agree with you about meeting space but the Martinez case is about funding. In Martinez the group was given meeting space, even as it was denied funding.
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December 21, 2009, 11:43 amDangerMouse says:
And gosh, it still keeps spreading....
Yesterday’s argument was that it was a violation of a government funder to discriminate to whom it gave its funds to. Today’s argument is that groups that receive funding can’t choose their members in violation of the funder’s policy.
Tomorrow’s argument will be that it’s a violation of groups who discriminate to even use public resources at all.
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December 21, 2009, 11:46 amDilan Esper says:
i would go the other direction from pathmv. our public policy should recognize that while people should have the right to discriminate in their private associations and have the right to espouse discriminatory views, sexual orientation discrimination should be treated just like race discrimination, and people who claim that god mandated such discrimination should not be treated any differently from those who claim that god mandated the separation of the races. i suspect over time, homophobia will wither on the vine just like racial bigotry has.
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December 21, 2009, 11:48 ampete says:
Unmarried heterosexuals were expected to be celibate as well. I thought about including that as well, but it looked clunky when I wrote it. And virginity was not required (how could we check for that anyways?), but you were expected to try to remain celibate. Part of being a Christian is realizing that no one is perfect or able to live a blameless life and that everyone sins so you do the best with what you have. We also expected our leaders to not cheat on tests, get drunk, be greedy, etc.
As Homer Simpson said, “This bible cost 15 bucks! And talk about a preachy book! Everybody’s a sinner! Except this guy.”
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December 21, 2009, 11:49 amPatHMV says:
Dilan, I suspect that sexual orientation discrimination (“homophobia” is over-used and often inaccurate) will generally wither on the vine in most aspects of life regardless of whether the law prohibits it or not. But, as difficult as it can be for some people, it doesn’t even begin to reach the level of societal harm caused by racial discrimination over the past several hundred years.
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December 21, 2009, 11:58 amRandy says:
Pete: “Unmarried heterosexuals were expected to be celibate as well. I thought about including that as well, but it looked clunky when I wrote it. And virginity was not required (how could we check for that anyways?), but you were expected to try to remain celibate. Part of being a Christian is realizing that no one is perfect or able to live a blameless life and that everyone sins so you do the best with what you have. We also expected our leaders to not cheat on tests, get drunk, be greedy, etc.”
Good for you. That’s the way it should operate, in my opinion. I raise the virginity issue (and was going to raise the masturbation issue, too, but didn’t), because it really is a teaching moment for these students. If a Christian group leader shouldn’t have sex outside of marriage, that implies that he or she must be a virgin. How do you detect that, or enforce it? Many religions prohibit masturbation as a sin, so therefore no leader can ever have masturbated.
So you have to give some leeway or else you will be left with no leaders for the group, or you will have to go through an invasive interrogation process that will leave many people feeling badly. So where is the leeway given? What are the hard and fast rules? Why? If a gay man is dating another man but they remain celibate, that would still qualify him for being a leader? Since being gay isn’t a sin, but gay sex is (in many beliefs), he should still be able to be a leader.
Part of being a Christian is grappling with these issues, I would think.
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December 21, 2009, 12:05 pmPatHMV says:
Sara, I suppose that goes to the crux of Eugene’s debate, whether the university providing access to space is the equivalent of funding for these purposes. I’ll have to go back through his other posts on the topic to see the precise distinction he’s drawing. At quick skim, he seems to be drawing a distinction between “providing access to property” and “providing funding” or providing “meeting space” (see here):
Leaving aside the issue of direct funding, I’m not sure yet what distinction he is making between “providing access to property” and being entitled to “meeting space.”
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December 21, 2009, 12:10 pmSara says:
I think Eugene is recognizing the consensus that providing meeting space to all private groups on a equal basis is constitutional, whereas denying funding is also constitutional. (And, I think, denial of funding is absolutely required for religions.)
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December 21, 2009, 12:21 pmRandy says:
Pat: “I suspect that sexual orientation discrimination (“homophobia” is over-used and often inaccurate) will generally wither on the vine in most aspects of life regardless of whether the law prohibits it or not. ”
Perhaps, but perhaps not. I don’t see a heck of a lot of movement in the area of gay rights now, and that is directly attributable to the fact that many people still hate gays. I see no reason why my tax dollars, that I pay into, should support discrimination against anyone, including gays. I suspect that if there were lots of discrimination against people named Pat you wouldn’t be too happy to see the government be so blase about it.
“But, as difficult as it can be for some people, it doesn’t even begin to reach the level of societal harm caused by racial discrimination over the past several hundred years.”
First, I don’t see this as a contest. No one is trying to reach or outdo the discrimination of one group versus another to obtain rights.
Second, it isn’t about groups, but about individuals. A black man fired from his job just because he is black is no worse or better off than a gay man fired from his job just because he is gay. Whether the cummulative effect on society is greater for one or another is irrelevant to the individual. And our government is about protecting the rights of individuals, not groups.
Third, there are plenty of gay men who are black themselves, and plenty of blacks who are gay. They belong to both groups. How do you explain to those people that it’s being hated for being gay isn’t quite as bad as being hated for being black? As you can see, it really makes little difference.
Fourth, on basis do you conclude that the effects of racism on society are worse than the effects of homophobia? How would you measure it? I can make an argument it’s at least as bad, and is sometimes worse. Example: You don’t see any marriages ruined because a woman realizes the man she married is really of a different race. Yet, that happens quite often because gay men try hard to not be gay by marrying a woman. This happens a lot more often than you think. Has the cost to society been calculated on just this one aspect of homophobia? Not at all.
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December 21, 2009, 12:35 pmArthurKirkland says:
Who decides whether someone is Christian enough to be a member or leader of the Christian Legal Society?
The one whose Christianity admits gay clerics, or the one whose Christianity is aggressively anti-homosexual?
The one whose church features a rock band, or the one who considers that an abomination?
The one who embraces the “gospel of affluence,” or the one who believes a Christian must focus on Christ’s teachings about the poor?
The Mormon, or the one who refused to acknowledge a Mormon as a Christian?
The long-time evangelical firebrand who finds fault with those less aggressive about opposition to abortion (but who shares an apartment with a significant other of the opposite sex), or the Christian who is ambivalent about morning after pills but believes shacking up is a disqualifier for membership in the Society?
The Christian who believes the death penalty to be an abomination similar to abortion (or homosexuality), or the Christian who pickets Planned Parenthood (or shuns homosexuals) but aggressively advocates the death penalty?
The Christian who believes the United States is destined to win in Iraq because “our god is better than their god,” or the Christian who believes anyone who supports the invasion of Iraq is no better than a practicing homosexual or a doctor who performs abortions?
As always, it is difficult for anyone on the outside to resolve disputes involving people who believe they are on a mission from God and for whom “just because” is a winning argument.
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December 21, 2009, 1:18 pmDangerMouse says:
Arthur,
Don’t be coy: if you had your way, the government would decide. That is, if they want to use public resources.
Want to drive on the street? Sorry, you’re not allowed to discriminate! Want to walk in the park? Sorry, no discrimination!
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December 21, 2009, 1:24 pmShelbyC says:
If the basis for the funding is religion neutral, then absolutely.
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December 21, 2009, 1:31 pmShelbyC says:
Are you suggesting there should be a test? If a group is otherwise qualified to receive funding, but is a religion, they should be denied on that basis?
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December 21, 2009, 1:35 pmArthurKirkland says:
I think I don’t want the government to have the power to decide, or to be forced to decide, when Ned objects that “Homer isn’t a legitimate officer of the Christian Legal Society because he approves of homosexuality, sells morning-after pills at the pharmacy and is a Mormon” while Homer objects that “Ned isn’t even a legitimate member of the Society because he admits he has sex with his girlfriend — and drove her to the abortion clinic last year — and volunteers to help with death penalty prosecutions.”
But I’m open to a persuasive argument from just about any angle.
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December 21, 2009, 1:36 pmSara says:
Shelby, The Constitution, prevents establishment of “religion” and has for more than 200 years.
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December 21, 2009, 2:07 pmPatHMV says:
Randy, as the old saying goes, your rights end where mine begin. Protecting individuals from private discrimination necessarily means the government infringing on someone else’s right to associate with whom they please. I value that right highly. That’s why I think that it is only appropriate to infringe upon that right when the evil being rectified is of sufficient magnitude that society is worse off without the infringement than with it. That’s why the magnitude of the harm, the history of the harm, is relevant.
As for funding, I agree. You want a law which says that the government cannot engage in sexual orientation discrimination? Fine with me, I have no objection. But if, as one of the commenter above suggests, you want to extend that to say that any group which consumes any public resources, and thus is receiving “public funding” of some sort, well that’s where I disagree. Want to say: “the school will not provide travel funds to send the officers of the Christian People’s Association to its national conference,” that’s fine by me. Want to say, however: “the school will not recognize the Christian People’s Association, and because of such lack of recognition, the CPA is not allowed to hold meeting in empty classrooms, is prohibited from placing fliers on campus bulletin boards, and is not allowed to establish a table in front of the student union,” well, that’s not ok with me.
Arthur, if you don’t want the government to have that power, then you need to be on the side which finds that the government has no business telling private groups who they must or must not have as members.
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December 21, 2009, 2:10 pmPatHMV says:
As for movement in gay rights, Randy, seriously? Are you looking only at the issue of marriage? Because from where I sit more and more companies are adopting “gay-friendly” policies, recognizing gay partners for purposes of buying insurance, sick leave, etc. See here, for example. Also here and here (latter is a list of major U.S. companies offering domestic partner benefits to homosexual partners).
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December 21, 2009, 2:17 pmSara says:
Really, Shelby, so you have no problem with all State funding all religions that do x, y and z? As long as those rules are neutrally applied to all. Fascinating, if utterly foreign to American law and tradition.
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December 21, 2009, 2:20 pmShelbyC says:
Correct, but it’s far from obvious that laws that allow religious institutions to receive money on a religion-neutral basis are “law[s] respecting an establishment of religion”. But to me it’s a little more obvious that laws that exclude institutions from funding that they are otherwise qualified to receive violate the free exercise clause.
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December 21, 2009, 2:23 pmShelbyC says:
Err, there’s a logical disconnect here. If the state funds only religions that do x, y, and z, they’re not neutrally applying the rules. If they fund everybody that does x, y, and z, fine and dandy. If they fund everybody that does x, y, and z except religious institutions, you have a free exercise problem.
What’s foreign to American law and tradition is conditioning government benefits on a religious test, as you appear to be suggesting.
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December 21, 2009, 2:31 pmMore on Christian Legal Society v. Martinez | Liberal Whoppers says:
[...] link: More on Christian Legal Society v. Martinez Share this [...]
Randy says:
Pat: ” Protecting individuals from private discrimination necessarily means the government infringing on someone else’s right to associate with whom they please.”
Of course. But we are not talking about association; rather, we are talking about recognition and funding from either public funds or mandatory student fees. If you want to start up a student group that discriminates for whatever reason, that’s okay by me, so long as you refuse any funding from public funds or student fees. But once you agree to accept those funds, you have to agree that they come with strings, and those strings are that you cannot discriminate against anyone for membership activity. I really can’t understand why this is so controversial.
“Want to say, however: “the school will not recognize the Christian People’s Association, and because of such lack of recognition, the CPA is not allowed to hold meeting in empty classrooms, is prohibited from placing fliers on campus bulletin boards, and is not allowed to establish a table in front of the student union,” well, that’s not ok with me.”
The question turns on whether the student group called the Christian People’s Association is willing to allow anyone to join their organziation. If the answer is yes, then they can get funding and recognition, but it they want to prevent atheists from attending meetings, then no. They can prevent atheists from being a leader — I have no problem with that — but why should they be allowed to prevent anyone from attending their meetings IF they receive public funds or student fees?
Pat: ” That’s why I think that it is only appropriate to infringe upon that right when the evil being rectified is of sufficient magnitude that society is worse off without the infringement than with it. That’s why the magnitude of the harm, the history of the harm, is relevant.”
In which case the magnitude of homophobia and discrimination against gays is certainly of the magnitude that society is worse off because of it. On that, I certainly agree with you, as do most people, since a clear majority of Americans believe that gays should be free of discrimination for employment and housing and other such matters.
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December 21, 2009, 3:01 pmTim says:
I still fail to see any successful argument that this is not viewpoint discrimination.
I do not think homosexuality is wrong, nor do many (or even most) Americans. Some do. They want to express that idea. They want to deny entry to people who do not agree with that idea. They do, and they are denied even non-monetary use of university resources.
This is viewpoint discrimination and violates the first amendment. The only analysis required is a simple question. Are they being told that they cannot associate and/or use university resources because someone doesn’t like what they have to say? The answer is, quite obviously, yes. Could they allow gays to join their group and still say that homosexuality is wrong? The answer to that is “probably not.”
This case exists because the university administration has “progressed” beyond the viewpoint that homosexuality is wrong and the Christian Legal Society has not. The last time I checked, it wasn’t the role of government officials to proscribe what views were acceptable and weren’t. Perhaps the fact that the public university must subsidize reprehensible viewpoints (like this one, or that global warming is not an elaborate hoax, or that guns cause violence, or insert your reprehensible idea here) is a consequence of having public universities. But so long as we continue to have government officials running our public schools who are attended by adults with full constitutional protection, they must respect the constitution’s commands. In other words, they are not “in-charge” in this instance–the Constitution is. Their ability to constrain the views of the students is in turn constrained by the Constitution’s limit on their authority. One of the explicit constraints is that they may not proscribe what viewpoints are acceptable and which ones aren’t.
Fortunately the 7th Circuit already got this case right. SCOTUS is likely to follow.
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December 21, 2009, 3:06 pmTim says:
As usual, this misses the point entirely.
I am the President of a gun shooting club. I do not want felons in my club. Felons cannot possess firearms. The same goes for international students who do not have the proper visa to possess a firearm in the United States. There is no reason for them to be involved in my club. It is not the place of you or the university to tell me that I cannot ban them from my club.
Any club, similar or not, can an should be allowed to set such criteria for membership. To join the chess club, they might have you try out and determine whether you know how to play chess. To join a fraternity or sorority, they might see if you have the social skills that they’re looking for. The basketball team only allows people who have the skills that they think are necessary to compete and win. And yes, to be in the Christian Legal Society, you have to agree with THEIR idea of what being a faithful Christian means.
All of these organizations use university resources. Fraternities and sororities engage in obvious discrimination on who they allow to pledge every semester. This is nothing new and not going to change.
CLS doesn’t think I’m cool enough to join their club because I am a sodomite. I think that personally a few of them could use a good BJ once in a while. They have their club, and I’ll make my own, entitled, “CLS Members Should Consider Getting a BJ.” So what? Such is life. Complaining that the coach is discriminating when he decides who gets on the basketball team or that the entire greek system is flawed because the current members decide who is cool enough to join the fraternity misses the point. The point is that it’s up to the organization to decide what they believe, not you or some government flunkie. It’s their club, and their right to think whatever they want. Don’t like it? Form your own club to oppose them. That’s what free speech is all about...not silencing your enemies.
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December 21, 2009, 3:18 pmptt says:
Because they’re lily-livered chickens? There are plenty of groups who allow gay members and have absolutely no trouble railing against them. Take the GOP for example.
This group is seeking university enforcement of their prejudices. They’re unwilling to rely on their own ability to make gay people feel unwelcome and inferior. They have to have permission to keep out the gay people.
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December 21, 2009, 3:21 pmPatHMV says:
Randy, denying access to campus space and the ability to put up fliers on campus bulletin boards is the functional equivalent of banning the group from campus. That is discrimination against the group based on its religious beliefs. It is not, in my view, at all the equivalent of providing funding to subsidize their operations. If the campus wishes to refuse to pay to have their fliers printed, fine, as I said before. But there ARE no bulletin boards on campus which are not owned or controlled by the campus. Refusing such groups permission to post on the bulletin board would be the equivalent of declaring the campus a religion-free zone, at least for those who are actually sincere in their religious beliefs.
You keep equating lack of discrimination with a legal prohibition against discrimination. I agree that nobody should discriminate against a gay person for a job or whatever because of their sexual orientation. I simply, but strongly, disagree that the government should impose a mandate on private citizens and businesses as to what they can and cannot consider in deciding who to hire, etc.
Since a majority of Americans, as you point out, believe that discrimination against homosexuals is wrong, this means that only a minority of Americans believe in such discrimination. Surely it was a majority in favor of such discrimination 30 or 40 years ago, yes? And public attitudes have switched around in that time frame. Do you have any reason to believe that trend won’t continue? Why do you think the power of the government should be used to coerce a person into hiring somebody they don’t want to hire?
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December 21, 2009, 3:41 pmPatHMV says:
ptt, say what? They’re not seeking permission to keep out the gay people. The university is telling them that they cannot functionally exist on campus unless they change their rules (the rules they themselves chose to adopt). They don’t want government permission to do anything other than what every other “recognized” group on campus is allowed to do, put up some fliers and meet in some old empty classroom.
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December 21, 2009, 3:43 pmRandy says:
Tim: “Any club, similar or not, can an should be allowed to set such criteria for membership.”
No group may exclude from membership anyone if they receive funds.
“To join the chess club, they might have you try out and determine whether you know how to play chess.” Nope. Membership should be open to all, even those who don’t know a damn thing about chess.
” To join a fraternity or sorority, they might see if you have the social skills that they’re looking for. The basketball team only allows people who have the skills that they think are necessary to compete and win.”
I agree. But the point is that no one is automatically excluded from consideration. Everyone should have the right to try out for the basketball team, even a quadripalegic. If they want to come up with a criteria that makes sense with regards to their mission, then that’s perfectly okay. You want to join a sports team? You have to beat out others so that only the best are selected. but you give everyone a chance.
IF there were, on the other hand, a basketball club that meets to support the sport of basketball, then everyone should be allowed to join, because no actual skill in needed.
Anyone should be able to try out for a frat house. It may be that a certain frat house never seems to admit blacks, and that’s their right. But they cannot put in their charter that no blacks can ever gain admittance, or that blacks cannot attempt to pledge.
“The same goes for international students who do not have the proper visa to possess a firearm in the United States. There is no reason for them to be involved in my club.”
Yes there is. Someone might just want to date a guy who knows how to shoot a gun. What better place than to join the gun club? You can certainly have rules that only those who are not felons can shoot or participate in certain events, but you cannot exclude them from merely attending meetings and helping to organize a donut sale to raise funds for the club.
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December 21, 2009, 3:51 pmPatHMV says:
So you don’t actually believe in the freedom of association then, Randy? Are you going to address the issue in which you equate permission to post fliers on bulletin boards with “funding” of that group?
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December 21, 2009, 3:57 pmptt says:
Pat, let’s not be obtuse. They are seeking to act as any other student organization — posters, meeting rooms, etc. — while excluding certain students. The seek to exclude with the approval of the university and with the financial support of the student body.
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December 21, 2009, 3:57 pmPatHMV says:
Financial support? Being allowed to post on bulletin boards? By what right does the university, a public entity, decide it can exercise view-point discrimination on fliers posted on such boards?
And, as noted earlier, the Supreme Court has held that if you allow any groups to access school facilities to hold club meetings and the like, you cannot prohibit religious groups from doing so. Those precedents do NOT require that the religious groups seeking to exercise that right to transform themselves into open-to-all humanistic social clubs.
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December 21, 2009, 4:21 pmloki13 says:
I haven’t posted on these threads in a while, but I thought I’d give a quick update since Rnady gave a shoutout (thanks Randy!).
1. Despite DangerMouse’s fears of lions and gladiators, there isn’t any attempt to persecute Christians on campus. As I’ve written about before, the “takeover” issue is a theortical problem in search of a rhetorical justification. However, I (like Randy) have no problem with student groups writing their charters/constitutions in such a way as to minimize this non-existent problem.
2. One more time– if people want to form their own private groups, completely without the school’s funding or any support, they can. If groups want to get meeting places, and not accept the (very meager) school funding, they can do so. However, if they want to accept school funding, it seems that a student group should be open to all students. Because, well, that’s the point of student groups. Gay groups can have stright students, black groups can have white students, and Christian groups can have atheist students. This is the policy at both my UG and Graduate school, and was never a problem when I attended.
3. Building on Randy’s rebuttal of Tim– it is one thing to say that a school basketball team can exclude students after tryouts because they aren’t skilled enough. It is anouther for the team to say a priori that no gays/blacks/christians are even allowed to try out. Same with student groups– a person can join a chess team without knowing chess (they might want to learn!). And so on.
In the end, I don’t understand why this is so objectionable, and why Christian Groups are demanding special rights. Why should they get special rights that aren’t allowed to other student groups? I think it might play into the perseuction complex evidenced by some of our commenters, but... really? They are saying that they, alone among all student groups, should be allowed to have state funding and state-sanctioned discrimination because they can’t keep their own house in order?
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December 21, 2009, 4:27 pmloki13 says:
No. But if they want to be a *student* group, they have to be open to students. They can always be a religious club that doesn’t get school funding, you know.
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December 21, 2009, 4:28 pmPatHMV says:
Will NOBODY justify why being granted the privilege of posting on bulletin boards and using an empty classroom for meeting space constitutes “funding”? Discuss why, given the unique nature of a college campus, a prohibition on such is the functional equivalent of a prohibition on existing at all?
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December 21, 2009, 4:38 pmPatHMV says:
How about frats? They let only members in, and it’s pretty much their sole discretion as to who gets in. Are you going to grill each member of the admit committee as to why they voted against letting certain students become pledges?
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December 21, 2009, 4:40 pmSara says:
Then there is no problem with funding student groups that only accept all students.
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December 21, 2009, 4:40 pmSara says:
Frats are not funded by the U.
Why isn’t access funding, Pat? Because it’s not funding.
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December 21, 2009, 4:46 pmptt says:
If I have set Pat off on a “funding” conniption, I apologize. It is my understanding that the group in question is suing to remain as a university-approved, funding-receiving, student organization on campus. I don’t know how else to put it.
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December 21, 2009, 5:20 pmMichelle Dulak Thomson says:
PatHMV,
Will NOBODY justify why being granted the privilege of posting on bulletin boards and using an empty classroom for meeting space constitutes “funding”?
Well, because at least the second is the sort of thing other people generally have to pay money for? It isn’t generally much money, if all the group wants to do is meet and talk and have access to the bathrooms if needed; but it ain’t precisely free. Most churches with meeting halls (and the like) that are for the most part not in use do rent them out to AA or other support groups, independent Bible studies, book clubs, and so on. Rent, not lend gratis; the access is very inexpensive, but not free.
There are costs associated with letting space be used. Even if the group is scrupulous about cleaning up after itself and leaving the space in good order, someone does occasionally need to verify that that’s so.
There are also security issues associated with using church space, since churches generally don’t have people around to lock and unlock at all hours; that’s a cost less applicable to colleges, where there’s generally no need to use a building at hours when it wouldn’t be generally open. Still, most classrooms have locks, and so someone has to have a key; and many classrooms contain stuff that someone might potentially want to steal.
Just for fun, turn it around this way: Suppose a student wanted to live in “empty” classrooms — sleeping in one, washing herself in the bathroom, and storing her possessions in whichever room happened not to have class going on in it at the moment. Wouldn’t that look like something for which people ordinarily pay rent? But what item, in isolation, doesn’t fall into a category that student groups using college facilities already use? (Sleeping in a classroom, maybe; but if you want to make that the trigger, careful how you draft the rule — not because students are always falling asleep in class, but because politically engaged students, in particular, are known to argue til dawn, and occasionally don’t quite make it there in a conscious state.)
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December 21, 2009, 5:29 pmRandy says:
Pat: “I simply, but strongly, disagree that the government should impose a mandate on private citizens and businesses as to what they can and cannot consider in deciding who to hire, etc.”
Totally agreed, Pat. But that’s a red herring — no one has argued that gov’t should impose a mandate for businesses or private citizens to hire people they don’t want to.
“Since a majority of Americans, as you point out, believe that discrimination against homosexuals is wrong, this means that only a minority of Americans believe in such discrimination.”
Sure. But in many parts of the country, or in any particular community, the reverse may be true.
“Why do you think the power of the government should be used to coerce a person into hiring somebody they don’t want to hire?”
Please Pat — we are talking about student groups and whether they can discriminate and still receive funding. Please try to stay on topic.
“So you don’t actually believe in the freedom of association then, Randy? ”
I sure do! Please review my previous posts on this topic above. Any student group may freely associate with whomever they wish. BUT — if they wish to get funding that comes from my pocket, then they have to be open to everyone. Don’t like that? Than don’t ask for funding! But you want some groups to have special rights — to able to claim funding AND exclude any people that they want. That is what I disagree with.
“Will NOBODY justify why being granted the privilege of posting on bulletin boards and using an empty classroom for meeting space constitutes “funding”? Discuss why, given the unique nature of a college campus, a prohibition on such is the functional equivalent of a prohibition on existing at all?”
Most campuses also have a student newspaper. They can advertise in the classifieds or take out an ad, just like anyone else. Often times, campuses have bulletin board that are for the general public and not restricted as to use, so they can use them. They can also advertise on the internet, which is where most students look for activities anyway. So there is no shortage of ways that a non-recognized group may still reach out to students.
As for classroom space, yes that should be restricted to recognized student groups. However, a non-recognized group still has options: They may pay a small reasonable fee to meet in a classroom or on campus, or they meet anywhere off campus that they choose.
In short, any student group that wishes to discriminate may do so, but just not accept student funding or free classroom space. They may, however, use campus facilities for a nominal charge or meet off campus, and still reach out to students. I don’t see what the problem is.
“How about frats?”
Again, that was explained above. Please read more carefully before you keep asking the same questions. And although Sara makes a good point that they don’t receive funding, they still get campus recognition. As long as pledging is open to any student, they can make their selection on any criteria they so choose. It has worked well lo these many decades, so I don’t see any problem arising now.
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December 21, 2009, 5:34 pmGov98 says:
So...what if for CLS, membership is open to all, but only upon unanimous consent of the current membership, and after a testimony by the prospective member? Is this problematic or not (under the Fraternity example)?
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December 21, 2009, 9:34 pmreadery says:
I have no doubt such rules could survive a rational basis analysis. But is rational basis the right standard? The argument is that the conduct involved is protected by one or more components of the First Amendment, speech, or association, or the Establishment Clause.
If it’s covered, the standard involved is compelling interest. No-one doubts that if the First Amendment doesn’t apply, the rules are constitutional. All this talk of legitimate interest seems beside the point. Frankly, the state pretty much has a legitimate interest in a ham sandwich, at least sufficient to support an indictment.
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December 21, 2009, 9:49 pmreadery says:
I think the impact of Rosenberger hasn’t been adequately addressed here. Rosenberger holds that student religious groups have a right to University recognition and funding.
I don’t think Professor Volokh has addressed the case’s implications.
By way of analogy, suppose a state only permitted state funds to be spent for defense lawyers for defendants who plead guilty or who have a strong claim of actual innocence. Under rational basis there’d be no problem at all. No one could question that a state has a legitimate interest in using its funds to advance its interests, and limiting legal-assistance funds to defendants who plead guilty or can proffer acctual innocence rationally focuses state resources on deserving defendants who are willing to accept responsibility for their conduct and/or who have meritorious cases.
The flaw in approach is to regard state spending for defense lawyers as a state-initiated program that can then be conditioned on behavior according to state rules. It isn’t. A defense lawyer paid for by state funds is a defendant’s right and if the state doesn’t like it there’s not a thing the state can do about it. The state has no right whatsoever to limit funding to only defendants the state approves of and has no right to set rules parsing defendants into deserving and undeserving categories. Access to a lawyer isn’t charity and a state has no right to pretend it’s charity or set rules of a sort that would be acceptable when it actually gives charity.
That’s exactly the situation we have here. Under Rosenberger, the student’s group’s access to university support and funding comes from student’s constitutional rights, rights which exist whether the University likes it or not, approves or not. Like a defendant’s right to access to a state-funded lawyer, those rights don’t depend in the least on whether the groups are organized the way the university wants them to be or finds agreeable. For this reason, the fact that a given set of rules would have a rational basis if the university had a right to impose them is completely irrelevant to the question of whether it can impose them or not in this case.
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December 21, 2009, 10:10 pmDilan Esper says:
I think the impact of Rosenberger hasn’t been adequately addressed here. Rosenberger holds that student religious groups have a right to University recognition and funding.
Well, no, it doesn’t hold that.
It holds that IF a university chooses to fund student groups, it can’t discriminate against groups simply because their message is religious.
The entire question here is whether discriminating against groups that have discriminatory membership policies is the same thing as discriminating against them because they have a religious message. Some say it is, some say it isn’t. But Rosenberger leaves the issue open.
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December 21, 2009, 10:53 pmTim says:
This is false. This isn’t about funds. They are being denied official recognition by the law school. This is not about funding. They are telling them that they cannot use even non-monetary resources of the law school because they do not proscribe to the university’s viewpoint.
That is viewpoint discrimination.
If you cannot see the absurdity in that analogy, I’m not even going to waste my time trying to explain it to you. If you think I wouldn’t be immediately excluded from consideration for the University of Illinois’ basketball team when I showed up in my 5’5″ glory, you’re mistaken.
But that’s not what they said. What they said is that you cannot join unless you agree to their statement of faith. I wouldn’t have a problem with them doing what you’re claiming, but that’s not what happened.
If I have set Pat off on a “funding” conniption, I apologize. It is my understanding that the group in question is suing to remain as a university-approved, funding-receiving, student organization on campus. I don’t know how else to put it.
Without official recognition, a club cannot request space to even have a meeting. Funding, at my school anyway, is totally separate from that process and subject to approval or disapproval, based on different criteria. Also, the funds that are disbursed to student organizations at my school come from a refundable fee, not a mandatory one.
Actually that’s not the topic at all. That’s how you’re trying to sway the topic to advance your viewpoint. The topic is official recognition, not funding.
Ahh, so your complaint isn’t that there are people who think differently than you, only that if there are such groups, they should be denied official recognition AND funding because you don’t agree with them. That, sir, is obviously viewpoint discrimination.
You’re still failing to address why we, as citizens of the United States, would allow government officials to decide who is a recognized student organization and who isn’t. Denying recognition on the basis of viewpoint isn’t something that the Constitution permits.
You finally get it! In this case, asking to join the student organization is “pledging.” And their refusal to allow you to join after you refuse to embrace their statement of faith is their “selection” process, in which you, me, and probably the overwhelming majority of other people, who are sodomites, homosexuals, or whatever other group they wish to bar from their group are excluded. If you actually agree with the viewpoint you’ve expressed in this quote, I’m not even sure what we’re arguing about, because you’ve embraced a viewpoint consistent with my opinion if that’s the case. Their “process” for excluding persons that they don’t deem worthy of joining their club is an explicit statement of faith that is required to join. Don’t agree? Then you can’t join.
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December 21, 2009, 11:01 pmSara says:
Tim, This group met at the law school and functioned without official recognition; it just was not funded. So you are wrong. The case is about funding.
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December 21, 2009, 11:14 pmTim says:
But anyone may meet in common spaces of a university without the sanction of administrators. I even attended a private university in which the library was open to the public during certain hours (even non students!). Your point sidesteps the issue–that students, who which to form a student organization are being denied official recognition on the basis of their viewpoint, specifically that homosexuality, fornication, and sodomy, among other things, violate their religion.
In my world, students should be able to form a recognized student organization to advocate whatever viewpoint they desire, and determine who may be a member based on whether a person professes that viewpoint or not. The brief for CLS explains that they welcome any and all participants to their meetings, including atheists, and always have. They deny membership to these persons because all members have voting privileges in the club and allowing people with potentially hostile viewpoints to join as voting members threatens their continued existence.
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December 21, 2009, 11:20 pmSara says:
No. They are denied official recognition because they don’t allow all students to be members.
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December 21, 2009, 11:33 pmptt says:
Considering that YOU brought up the rather faulty parallel of a basketball team, perhaps you might be a bit more charitable to those who go with it.
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jrose says:
I thought Eugene was persuasive when he argued the motivation behind the denial is that some forms of discrimination are worse than others, and it is merely a disparate impact that some viewpoints are more affected.
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December 22, 2009, 8:32 amreadery says:
The entire question here is whether discriminating against groups that have discriminatory membership policies is the same thing as discriminating against them because they have a religious message. Some say it is, some say it isn’t. But Rosenberger leaves the issue open.
However, a chain of Establishment Clause cases closes it by holding that religious groups are unique in that the state cannot regulate their membership as an absolute prohibition on the State. Courts have held religions are exempt from a host of discrimination laws whether the laws contain an explicit exemption or not.
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December 22, 2009, 9:02 amjrose says:
But this case involves a subsidy, so as Eugene has exhaustively analyzed, the standard is only whether the state has engaged in viewpoint discrimination (possibly disfavoring religious viewpoints per Rosenberger).
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December 22, 2009, 9:16 amDilan Esper says:
However, a chain of Establishment Clause cases closes it by holding that religious groups are unique in that the state cannot regulate their membership as an absolute prohibition on the State. Courts have held religions are exempt from a host of discrimination laws whether the laws contain an explicit exemption or not.
Actually, under Employment Division v. Smith, it’s probably constitutional to subject religious groups to generally applicable anti-discrimination laws (though perhaps not when it comes to discrimination based on religious belief itself). That principle hasn’t been tested, though, because anti-discrimination laws almost always contain exceptions for religious groups.
However, the people who are saying this is unconstitutional have to clear TWO hurdles– not only Smith, but also the fact that this is a funding decision and the government tends to get more leeway when deciding whom to fund.
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December 22, 2009, 2:13 pmHans Bader says:
The federal appeals courts disagree with Dilan, and have created judge-made exceptions to Title VII’s discrimination ban for churches (the statutory Title VII exception itself only applies to religious discrimination, not other kinds of discrimination mandated by churches in their selection processes, so a judge-made exception to Title VII had to be created to protect churches).
Almost all federal appeals courts have held, even after Employment Division v. Smith, that generally applicable anti-discrimination laws (like laws against age or sex discrimination) cannot be applied to churches in their selection of people who constitute the “voice of the church,” citing the need to prevent church-state entanglement, protect religious freedom, and the free exercise of religion. (See the 7th Circuit’s Young decision and the 4th Circuit’s Rayburn decision, for example).
Although the exemption is designed to promote church-state separation and prevent entanglement of church and state, it has been attacked, ironically enough, by groups like the ACLU and Americans United for Separation of Church and State. They only like church-state separation when it injures churches. When it helps them, the ACLU and AUSCS are very happy to obliterate separation of church and state and entangle the church in state hiring mandates. They also like racial preference mandates for religious broadcasters, something struck down by the DC Circuit in Lutheran Church–Missouri Synod v. FCC (D.C. Cir. 1998).
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December 22, 2009, 6:01 pmDilan Esper says:
Hans:
Congress could, in theory, overrule those cases and mandate that anti-discrimination legislation apply to churches. If Congress did that, Smith would apply, because that would be the application of a generally applicable law to churches.
As for your attacks on the ACLU, I guess that gives you an erection. We weren’t, however, discussing the ACLU, so perhaps you might want to spare us next time.
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December 22, 2009, 6:23 pmHans Bader says:
Congress cannot overrule those cases protecting churches from the EEOC, because they are rooted in the Constitution. Congress cannot overrule the Constitution. The judges in those cases relied on the Constitution, not Title VII, and carved out an exception to Title VII’s commands based on the Constitution’s contrary commands.
Those decisions held that Smith does not apply, both because it was subject to a separate branch of religion-clause case law unimpaired by Smith (a free-exercise rationale), and because the government dictating that clergy be hired as mandated by Title VII would violate the Establishment Clause by entangling Church and State (an Establishment Clause rationale).
Smith is a Free Exercise case, not an Establishment Clause case. See Employment Division v. Smith. So it does not give the government license to entangle itself in churches by dictating their hiring of those who are the “voice of the church” or questioning the plausibility of their hiring criteria, which would violate the Establishment Clause.
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December 22, 2009, 6:50 pmTim says:
Neither do fraternities, sororities, or the basketball team, or even the chess team for that matter. Many student organizations deny membership to people for reasons consistent with the mission of the organization. This is not new.
What is faulty about the analogy? A basketball team is no different than a student organization in this regard.
So it’s merely a coincidence that politically unpopular ideas are censored? I find that hard to believe. See my example about my shooting team. Discriminating against felons and persons without the lawful ability to own, use, or possess firearms doesn’t seem to me to be a discrimination of the “worst” kind, when in our society, felons are prevented from holding public office, voting in elections, etc. Felons are not a protected class, so I fail to see how this could be one of the “worst” forms of discrimination. It is, however, prohibited for me to deny membership to felons, and not because of any clash between the government’s interest in preventing felons from being armed and their right to freely associate, but because I must allow anyone to join, even if they cannot lawfully participate in any of our activities.
Either a right to expressive association exists or it doesn’t. It doesn’t matter what the reason is for the club to refuse membership if the right exists. If it doesn’t exist, it doesn’t matter if the chosen form of discrimination is worse than others or not. So long as there exists a rational basis for whatever rule they choose to have (such as, the suggested “all orgs must include any student who wishes to join”).
As far as I’m concerned, the right exists. Any regulation that inhibits the right to expressive association should face the strict scrutiny doctrine. And because there will never be any compelling government interest achieved by allowing fornicators, sodomites, and homosexuals in the Christian Legal Society, I’m pretty sure we can predict how that’d go.
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December 22, 2009, 6:56 pmJudge Justin L. Quackenbush says:
I find the intellectual discussion of the Christian Legal Society case to be fascinating. While in my 30 years on the federal bench I have had a limited number of cases involving similar issues, I intend to read all the comments and contributions to the Volokh Conspiracy and hopefully, educate or re-educate myself on the basic constitutional principles and arguments involved. Oh that we judges could spend more of our time on such matters, rather than being adding machines to calculate Sentencing Guidelines Ranges.
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December 22, 2009, 7:01 pmjrose says:
Do you think the Establishment Clause argument is tenable as applied to the Christian Legal Society?
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December 22, 2009, 7:43 pmjrose says:
I find it plausible. Good luck arguing your case in court. Also, you lost me on the felons hypothetical. I was not aware any university had an anti-discrimination policy protecting felons. Nor can I understand the reason why one would even hypothetically do so.
You are erecting a strawman because no one is arguing against a Constitutional right to expressive association. We are arguing against a Constitutional right to subsidizing all expressive associations (or more accurately, the choice of who to subsidize must only be viewpoint neutral).
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December 22, 2009, 7:54 pmSara says:
Teams and frats are not student organizations and are, also, regularly suppressed or discontinued by Universities and colleges. If that’s your model, than you have no argument.
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December 22, 2009, 9:53 pmTim says:
That’s precisely what a blanket policy that disallows me from barring any student from joining results in. I cannot ban felons from joining the shooting club, despite the fact that a federal law, passed by a democratically-elected legislature prevents them from participating in our activities. On the contrary, CLS allows anyone to attend their meetings, they simply deny membership to those who fail to meet their statement of faith. If anything, they’re attempting to be far more accommodating than I would be if my club’s right to expressive association were not being violated by university policy.
The real straw man is characterizing “official recognition” as a subsidy. As I’ve stated numerous times previously, denial of recognition of an organization denies them even non-monetary university resources. Changing the discussion from “official recognition” to calling it a “subsidy” because their is an opportunity cost to allowing them to use an empty classroom for a meeting distorts the issue. All students are welcome at their meetings, so the issue is not participation, either. The issue is whether or not they have a right to deny voting membership to those who do not agree with their statement of faith.
The chess club example is unquestionably a student organization and analogous. Intermural sports teams of all kinds exist on my campus, including bowling teams, trap and skeet, rifle and pistol, badminton, martial arts, soccer, lacrosse, hockey, frisbee, softball, baseball, ping pong, volleyball, hockey, etc.
The Illini Women’s Hockey Team doesn’t allow male members. You can see for yourself here:
http://www.illiniwomenshockeyclub.com/about_us.htm
I don’t see any reason to require them to allow male members, either.
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December 23, 2009, 12:18 amreadery says:
What about Lawrence v. Texas? As Professor Volokh explains it, the state can deny people in expressive partnerships the same benefits it gives others solely it finds their partner preference status ‘invidious’. Now “invidious”, like “abominable” or “detestable”, is simply a euphemism for hate — the state is denying funds because it hates people, no other reason. And the essence of Lawrence v. Texas is that the hate — call it “invidious” or whatever hate-word you care to choose — is simply not a rational basis for any state action whatsoever. Or at least, as Professor Volokh has previously explained, not for important matters, matters that implicate people’s “transcendental nature”
So here we have the remarkable view that sex implicates people’s “transcendatal nature” so the state can’t interefere with people’s choice of sex partners just because it hates their choices, while religion apparently doesn’t, or at least isn’t something really important, because unlike sexual partner choices the state CAN interfere with religious partner choices solely because the state officials think them “invidious” — that is, they creep state officials out. so state interference with invidious sex partner choices is irrational, but state interference with equally invidious religion partner choices — or expressive speech partner choices — is perfectly fair and legitimate.
Why? What’s the rational basis? What makes your hate OK here? Why is your hate OK but not mine or somebody else’s? Why is it Ok for your to hate the people you call “invidious” and put your hate into law solely because their “invidious” religious or expressive partner choices creep you out, but it’s not Ok for other people to hate people they think “invidious” whose sexual partner choices creep them out. Why? What’s the rational basis here? What’s the rational basis for applying Lawrence only to sex and sex partners and excluding religious or expressive activities and religious and expressive partners?
After all, it’s not like sex is specifically mentioned in the constitution while speech and religion are textually ignored.
Last I checked it was the other way around.
The whole argument seems completely pre-Lawrence.
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December 23, 2009, 12:35 amreadery says:
Note: i think the state in general CAN pass laws against behavior it finds ‘invidious’ in general, but special Constitutional provisions like the First Amendment carve out exceptions for special matters like speech and religion that these provisions give extra protection. But Lawrence v. Texas says otherwise. Why not extend it to all partnership preference matters, or at all partnership preference choices in all “important” matters?
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December 23, 2009, 12:43 amptt says:
You compare student organizations which can be joined by merely showing up with school-sponsored athletic teams which require skills. A better analogy would be the glee club.
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December 23, 2009, 4:13 amjrose says:
Under a standard of “no viewpoint discrimination”, there ought be no controversy that a blanket no-students-denied policy is constitutional. Yes, such a ban violates a “no infringement of expressive association standard” on an as applied basis (but see below).
The use of an empty classroom is a limited public forum created by the university, and thus once again the “no viewpoint discrimination” standard applies.
Also, Eugene often blogs about language. I wonder if he notices how often the accusation of a strawman is incorrect. Characterizing official recognition as a subsidy isn’t a strawman because it is not a misrepresentation of your position.
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December 23, 2009, 8:00 amjrose says:
The religion-classification of anti-discrimination statutes, unlike the anti-sodomy statutes, aren’t motivated by hatred of the partnership choice. They are motivated by making sure that people aren’t treated unfairly because of their religion. Thus, when the the government provides a subsidy, it can enforce who the organization chooses as a member because the motivation of the restriction is viewpoint neutral.
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December 23, 2009, 8:23 amTim says:
Being a member of the basketball team requires more than skills. They also have rules of conduct and if you do not adhere to them, you will not be on the team.
It doesn’t strike me as particularly strange that one must be a Christian (by their definition) and not engage in unrepentant sinful conduct in order to be a member of the CLS.
I don’t know what you mean by “no students denied.” Nobody is claiming that they were ever denied the ability to participate in any CLS event. They are claiming that they cannot join as voting members. The brief states clearly that everyone is welcome at their meetings, and was before they were de-recognized as well.
I fail to see how my identification of a straw man is incorrect. My position has been mischaracterized to suggest that the school is ‘subsidizing’ a club when they allow unused space to be used by the club for a meeting. That has never been my position, and, as such, arguing that point (with me, anyway) is a straw man.
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December 23, 2009, 5:11 pmreadery says:
But Professor Volokh in the last paragraph explicitly stipulated that the rules remain rational even if they are expressly motivated by hate:
Also, it’s not clear to me that “fairness” motivation saves. Many people believe that people who have sex with other people outside of marriage are not thereby not treating them fairly. They say getting the mik without the cow is unjust. But the Supreme Court held that sodomy laws are irrational even if they were enacted to ensure that people aren’t treated unfairly. Why should these laws be treated differently?
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December 23, 2009, 7:36 pmjrose says:
Let me rephrase.
Under a standard of “no viewpoint discrimination”, there ought be no controversy that a blanket no-students-denied-being-voting-members policy is constitutional.
I didn’t suggest your position was anything but “this case does not involve a subsidy”. I just think your opinion is misguided. That’s not a strawman.
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December 23, 2009, 8:05 pmjrose says:
Yes, but its hatred of unfairness, not hatred of the partnership.
I don’t think the Supreme Court held any such thing. I’m fairly certain they felt there was no plausible argument the anti-sodomy law could be motivated by fairness.
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December 23, 2009, 8:11 pmreadery says:
So suppose instead of an anti-sodomy law a state enacted a law prohibiting discrimination on the basis of sex in domestic or sexual relationships, defined as preference not serving a legitimate interest such as an interest in promoting gender diversity.
The state would be achieving a similar results mouthing the language of this law word-for-word. If the state can simply declare sexual preference in expressive partnerships to be “unfair” simply because it feels emotionally unfair to the legislators, why can’t it simply declare sexual preference in domestic partnerships to be “unfair” for the same reason? Why can’t the state simply declare that everyone has a right to an equal opportunity to get a date and discriminating on the basis of sex is in dating is invidious — except for legitimate affirmative action programs promoting gender diversity in domestic environments?
In other words, if the fairness argument were to be expressly made by a state, would Lawrence v. Texas then be no obstacle? (In other words, does “no plausible argument” mean “nobody’s made or wants to make the argument” or ‘the Court doesn’t agree with the argument?”
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December 23, 2009, 10:31 pmTim says:
Oh, so now it’s not about allowing the sodomites, homosexuals, and fornicators to participate on an equal basis. Now they all need to be voting members or they can’t have the club. What other restrictions are permissible?
Is a men’s group okay? How about a Korean Christian Fellowship? Men’s Tennis? Women’s beach volleyball? Where do we draw the line?
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December 23, 2009, 11:14 pmjrose says:
Since there is no subsidy involved, this violates expressive association rights without having to reach the question of whether it also prohibited by Lawrence (although I suspect the Court would not believe fairness is a plausibly rational motivation for such a statute and also reverse based on Lawrence).
The latter, although I think the former is likely to be true as well because the argument is ridiculous.
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December 24, 2009, 9:04 amjrose says:
If a generally applicable anti-discrimination policy is motivated by a legitimate consideration that is viewpoint neutral, then the line (who gets a subsidy even if they violate the anti-discrimination policy) needs to be drawn by the policy itself, not by the Constitution.
My conclusions are based on existing precedent and Eugene’s persuasive argument that the policy is viewpoint neutral. As Eugene and others have discussed here, it’s possible the Court will create new distinctions (voting members are different, the university environment is different) or (horrors, disagreeing with Eugene) find the policy is not viewpoint neutral.
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December 24, 2009, 9:17 ampoopface says:
word.
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January 5, 2010, 8:20 am