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It seems to me that Marty's proposal is indeed
for content-based restrictions, not just content-neutral antidiscrimination
rules. He suggests that the rule is facially content-neutral -- presumably
"no singling people out based on religion for speech or conduct that they're
likely to find offensive" -- but that's like saying that the breach-of-the-peace
rules in Cohen v. California, Cantwell v. Connecticut, Terminiello,
Hess, Edwards v. South Carolina, and other cases were
content-neutral. Sure, they applied general prohibitions on offensive
conduct. (See http://www1.law.ucla.edu/~volokh/conduct.pdf,
pp. 14-15.) But these prohibitions were applied to speech precisely
because it conveyed an offensive message.
Likewise here. Marty wouldn't bar all religion-based
targeting -- he'd allow religion-based targeting that conveys some messages but
not others, which presumably the reasonable recipient would find
offensive. That's clearly a content-based restriction.
Eugene
Marty
writes:
4. Of course
schools do not enforce such rules against every sort of student discrimination
-- e.g., choosing one's friends or dates, or picking sides in a kickball
game -- for the same reason that legislatures do not prohibit racial and
religious discrimination in every sphere of our lives (including how we treat
others in everyday social interactions). And they certainly do not
prohibit discrimination when it has absolutely no adverse impact on the
"disfavored" class, such as in Eugene's example of a Jewish student group
distributing leaflets about Yom Kippur services to students whom they knew to be
Jewish. But they do enforce anti-discrimination laws in those
circumstances where the conduct -- including expressive conduct -- obviously is
unwanted, or causes tangible harm, or is offensive. See, e.g.,
Davis itself. The fact that the school limits its
anti-discrimination enforcement only to these sorts of harmful (or "severe and
pervasive") cases does not make the prohibition content-based, contra Gene
Summerlin -- in part because the prohibition is not limited to discriminatory
speech, but applies as well to nonexpressive forms of
discrimination (again, see Davis). The school could
constitutionally enforce a much broader anti-discrimination ban; the fact that
it does not do so, that it reserves sanctions for discrimination with real
impact, and that it measures such impact in part by the recipients' reactions to
such conduct (including speech), does not to my mind (nor the Court's I think --
see Davis) raise a serious free speech problem -- but that's a
much more complicated subject that Eugene and I and others have long debated
without much resolution.
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