It seems to me that, as a general matter, the government may
deny benefits to groups that discriminate based on race, religion,
sexual orientation, sex, etc.; I argue in my forthcoming Freedom of
Expressive Association and Government Subsidies (Stan. L. Rev,
http://www.law.ucla.edu/volokh/association.pdf) that such restrictions
are permissible content-neutral (or at least viewpoint-neutral)
definitions of a designated public forum. If I understand the reasoning
behind the original North Carolina preliminary injunction (since
dissolved on mootness grounds, I think, because of a change in UNC
policy) correctly, it seems to me that it was mistaken. So I'm not sure
there's anything that needs to be reconciled there.
In some cases that involve similar facts, the court reasoned
that the nondiscrimination policy was applied selectively, based on the
actual viewpoints that the group expressed (so that groups that express
certain viewpoints weren't allowed to discriminate but others were).
That, I think, is right, if the facts support it; and it's consistent
with the California marina case, because while content-neutral (or at
least viewpoint-neutral) applications of nondiscrimination policies are
OK, applications that are based on the viepwoint expressed by the group
(rather than just by the group's expressive association decisions) are
not.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton
> Sent: Saturday, May 20, 2006 9:45 AM
> To: Religionlaw list
> Subject: Making a distinction
>
>
> In writing about a couple of cases lately, one of my readers
> has raised
> an interesting question. In a case involving Berkeley and the Sea
> Scouts, a Federal court ruled that the city could refuse to
> provide the
> Sea Scouts with a benefit they offer to other non-profit
> groups (a free
> slip at the city marina) because they engage in
> discrimination. But in a
> case involving the University of North Carolina and a Christian
> fraternity, a court issued a preliminary injunction saying that the
> University could not refuse to recognize the fraternity as a student
> organization and had to give them all the same benefits they did any
> other club despite the fact that they discriminate. And there is a
> series of cases, as I recall, leading to each decision, both of which
> seem correct to me. But how are they reconciled? Why must a
> government
> entity give official recognition and a generally available benefit in
> one setting, but is allowed to refuse such a benefit in the
> other? Can
> someone help me understand the distinction between the cases and the
> line of rulings that lead to them? Thanks.
>
> Ed Brayton
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