Tim: 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?

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.

readery: 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.

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).

readery: 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?”

The latter, although I think the former is likely to be true as well because the argument is ridiculous.

jrose:
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.

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?

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.

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?”

readery: But Professor Volokh in the last paragraph explicitly stipulated that the rules remain rational even if they are expressly motivated by hate:

Yes, but its hatred of unfairness, not hatred of the partnership.

readery: 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?

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.

Tim: 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.

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.

Tim: 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.

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.

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.

But Professor Volokh in the last paragraph explicitly stipulated that the rules remain rational even if they are expressly motivated by hate:

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.

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?

ptt:
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.

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.

jrose:
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.

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.

readery: What about Lawrence v. Texas?

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.

Tim: 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.

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).

Tim: 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.

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.

Tim: What is faulty about the analogy? A basketball team is no different than a student organization in this regard.

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.

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.

jrose:
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.

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.

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).

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.

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.

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.

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.

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.

Tim: So it’s merely a coincidence that politically unpopular ideas are censored? I find that hard to believe.

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.

Tim: Either a right to expressive association exists or it doesn’t

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).

Hans Bader: 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.

Do you think the Establishment Clause argument is tenable as applied to the Christian Legal Society?

Sara:
No.They are denied official recognition because they don’t allow all students to be members.

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.

ptt:
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.

What is faulty about the analogy? A basketball team is no different than a student organization in this regard.

jrose:
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.

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.

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.

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.

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).

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.

readery: 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.

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).

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.

Tim: 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.

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.

If you cannot see the absurdity in that analogy, I’m not even going to waste my time trying to explain it to you.

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.

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.

No. They are denied official recognition because they don’t allow all students to be members.

Sara: 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.

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.

Randy: 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. 

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.

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 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.

It is anouther for the team to say a priori that no gays/blacks/christians are even allowed to try out.

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.

Please Pat — we are talking about student groups and whether they can discriminate and still receive funding. Please try to stay on topic.

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.

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.

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.

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.

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.

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.

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.

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.

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.