RE: Faith tests okayed for campus Christian group at ASU

[Gregory S. Baylor]

Title: Message

I would argue that under cases like BSA v. Dale, a rule forbidding a religious organization from taking religious belief and extramarital sexual conduct into account in its personnel decisions infringes upon the religious organization's right of expressive association and, therefore, that the government in such a circumstance would be required to provide a compelling justification.   Prof. Jamar is correct that some of these cases involve "a benefit that need not be given at all." I may be misreading him, but I believe he is suggesting that the government may withhold benefits under a rule that it could not apply to the party in question by virtue of a direct regulation of behavior (as opposed to a condition on access to a benefit). If I am reading him correctly, I believe that this argument conflicts with existing precedent. The Supreme Court has repeatedly applied strict scrutiny to rules governing access to government benefits, e.g., Speiser v. Randall, Perry v. Sindermann, O'Hare Trucking, Velazquez v. LSC, etc.   In other words, I do not agree with Prof. Jamar's apparent assertion that these non-discrimination rules are not subject to strict scrutiny because they do not target religion or religious groups. [Note that even as a matter of Free Exercise Clause law, these rules are subject to strict scrutiny despite Smith given that they burden hybrid rights.]   Are these arguments not correct, as a matter of existing case law?   Thanks.   Greg -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, October 20, 2005 6:02 PM To: Law & Religion issues for Law Academics Subject: Re: Faith tests okayed for campus Christian group at ASU I agree that compellingness is lost when very few government entities adopt such laws or when many others exempt certain organizations from needing to comply.  So the state could not overcome any constitutional restriction based on compelling state interest analysis. However, a state does not need a compelling state interest just to pass and enforce a law that is not otherwise unconstitutional.  And it is not an unconstitutional law just because it does to some degree burden someone's religious practices or just because someone is excluded from a benefit that need not be given at all when that person's religious practices will not allow it to conform to that law. As I see it we don't need to get past a constitutional bar here because there is none.  This law is not targeting religion or religious groups.  As a matter of policy there probably should be an exemption in the law.  But that does not mean the constitution requires the exemption in this instance.  I would argue it does not, though I would rather see the policy be otherwise within the law. Steve On Oct 20, 2005, at 5:38 PM, Gregory S. Baylor wrote: I agree with the first sentence of Prof. Jamar's post. I was just suggesting that if a court concluded that the application of such non-discrimination rules to a religious group burdened its constitutional rights -- and therefore reached the question whether those burdens were justified -- the court might find the existence of these exemptions to be relevant. In other words, I believe that the existence of these exemptions undermines any argument that the government's interest in eradicating religious and sexual orientation "discrimination" by religious organizations is compelling.   Greg Baylor --  Prof. Steven D. Jamar                               vox:  202-806-8017 Howard University School of Law                     fax:  202-806-8567 2900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/ "There is no cosmic law forbidding the triumph of extremism in America." Thomas McIntyre

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