RE: Faith tests okayed for campus Christian group at ASU

[Gregory S. Baylor]

Title: Message

Neither CLS organizationally nor I personally are big fans of Smith.  We joined a very diverse coalition of organizations that supported the congressional response to Smith (RFRA).  We urged the Supreme Court to uphold RFRA in Boerne. After Boerne, we sought to re-assemble the RFRA coalition to support a bill called RLPA. Our efforts were unsuccessful, in part because certain groups had changed their minds about the relative importance of religious freedom and gay rights; they were concerned that theologically and morally conservative litigants might invoke RFRA to defend against the application of sexual orientation non-discrimination rules.   A number of courts have attempted to apply Smith's hybrid rights theory, and a number of them have confronted the intellectual "shakiness" of the theory, sometimes along the precise lines you identify. Given the unexpected nature of Justice Scalia's identification of "hybrid rights" theory, it is hard to evaluate which interpretation of the theory is the "correct" one. I doubt there is much value in my personal musings about which interpretation of the hybrid rights theory is "correct."   That being said, I think it is fair to say that if hybrid rights theory is relevant to any fact pattern, it is relevant to the fact pattern presented by the CLS chapter cases. The quoted language makes that relatively clear.   Furthermore, it is my view that, as a matter of a good faith application of the case law, courts should apply strict scrutiny to a public law school's decision to derecognize a CLS chapter on the ground that the chapter's leadership and voting membership criteria violate a school ban on religious and/or sexual orientation discrimination.  The application of strict scrutiny is compelled by a number of distinct lines of cases, including : (1) those involving viewpoint discrimination; (2) those involving ejection of an otherwise eligible speaker from a speech forum; (3) those involving burdens on the right of expressive association; and (4) those involving the free exercise of religion and some other constitutionally protected interest.   Moreover, I think a court would be wrong if it concluded that government has a compelling interest in the eradication of religious and sexual orientation "discrimination" by religious groups.   Greg Baylor -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Monday, October 24, 2005 8:28 PM To: Law & Religion issues for Law Academics Subject: RE: Faith tests okayed for campus Christian group at ASU Greg, would you mind telling us what you think that language you quoted from Smith means. I can think of two possibilities. On the one hand, it may mean that when freedom of association doctrine requires the application of strict scrutiny review to state action that interferes with a secular organization’s freedom of association, courts should apply that same rigorous standard of review when it is a religious organization’s associational freedom that is burdened. But if that is what the language means, the Free Exercise Clause adds nothing to the analysis and does not seem to have any reinforcing effect. Alternatively, it may mean that that when freedom of association doctrine does not require the application of strict scrutiny review to state action that interferes with a secular organization’s freedom of association, courts should nevertheless apply strict scrutiny review when it is a religious organization’s associational freedom that is burdened. If that is what the language means, religious groups receive greater protection for their associational freedom than similarly situated secular groups. Are you suggesting that either of these understandings of hybrid rights is correct – or is there some other way to understand what Scalia’s hybrid rights language means?   Alan Brownstein UC Davis     From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Greg Baylor Sent: Monday, October 24, 2005 10:14 AM To: Alan Brownstein; 'Law & Religion issues for Law Academics' Subject: RE: Faith tests okayed for campus Christian group at ASU   I agree that courts have struggled to implement Justice Scalia's "hybrid rights" concept.    Interestingly, in the section of his Smith opinion discussing so-called "hybrid rights," Justice Scalia stated as follows:   And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.   Cf. Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3251-52, 82 L.Ed.2d 462 (1984) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed").   Roberts, of course, concerns the application of a non-discrimination rule (albeit one that concerns sex rather than religion or sexual orientation). To the extent lower courts are willing and able to implement "hybrid rights" theory, the theory would seem to apply squarely to the situation we've been discussing, i.e., the application of a religion and/or sexual orientation non-discrimination rule to a religious group.   Again, it seems to me that a court trying faithfully to apply the Free Exercise Clause as interpreted in Smith to the CLS chapter cases would impose strict scrutiny.  I also believe that if courts correctly apply strict scrutiny, they will conclude that the government lacks an interest that is sufficiently compelling to justify the substantial burden on the religious student group's right to exercise its religion freely.   Greg Baylor      From: Alan Brownstein [mailto:[EMAIL PROTECTED] Sent: Monday, October 24, 2005 12:54 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Subject: RE: Faith tests okayed for campus Christian group at ASU With regard to Greg’s last point, the case law is decidedly mixed regarding so-called “hybrid rights.”  It is not surprising that courts are reluctant to accept this doctrinal fabrication manufactured out of whole cloth by Scalia in Smith since the principle is intellectually and/ or normatively indefensible.   Alan Brownstein UC Davis   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Gregory S. Baylor Sent: Thursday, October 20, 2005 3:24 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Faith tests okayed for campus Christian group at ASU   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?

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