Lamb's Chapel and Rosenberger hold that, in a designated public
forum (or even in a nonpublic forum), the government may not restrict
speech based on its religiosity, because that constitutes discrimination
based on the viewpoint of the speech. (There's a controversy about
whether such a restriction should be seen as viewpoint-based, but that's
what Rosenberger held.)
When the government opens a designated public forum only to
groups that don't discriminate on various grounds in their member or
officer selection decisions, that's not a restriction that discriminates
based on the viewpoint of the speech. It is a restriction that
discriminates based on the groups' exercise of their expressive
association rights, but I argue in the article I linked to that this
should not be unconstitutional.
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton
> Sent: Saturday, May 20, 2006 6:05 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Making a distinction
>
>
> Volokh, Eugene wrote:
>
> > 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.
> >
> >
> So where does that leave cases like Lamb's Chapel and Rosenberger?
> Neither is precisely on point, but Rosenberger is pretty close to the
> North Carolina situation, although I don't think it was
> really argued on
> the basis of non-discrimination law. Would you say that
> Rosenberger was
> decided incorrectly? Or Lamb's Chapel?
>
> Please pardon my amateur's understanding of the cases; I'm
> asking this
> to try and elevate that level of understanding.
>
> Ed Brayton
> _______________________________________________
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