When the proffered distinction is that flimsy and enables such easy evasion of a constitutional right, the distinction announces itself as wrong. Campus political organizations are not forbidden to choose leaders or voting members on the basis of politics. When campus religious organizations are forbidden to choose leaders or voting members on the basis of religion, it is the equivalent of prohibiting religious organizations. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax)
________________________________
From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Sun 5/21/2006 3:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: Making a distinction
I think the answer turns out to be yes, surprising as it might appear.
Recall that these were designated public fora (at best) -- government property
that the government had no obligation to turn over to any speakers. If the
government opens the property to private speakers, then it may not discriminate
in viewpoint-based ways (or in content-based ways, except when the
content-based ways are necessary to enforce the government-defined limits of
the forum).
But the government may choose to open its property, I think, only to groups
that make their programs -- and the programs' organizational committees -- open
to people without regard to race, sex, sexual orientation, religion, and so on.
That is a designation that's neutral as to the content of the group's speech,
and as to the viewpoint of the group's speech. The government may not impose
such a restriction as to speech on private property, or in traditional public
fora. But when it opens its non-traditional-public-forum property, it's
entitled to require that the groups that use it use it in nondiscriminatory
ways.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL
PROTECTED]
Sent: Sunday, May 21, 2006 1:38 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Making a distinction
Are you saying that the school districts in Lamb's Chapel and Good News
Club could have lawfully sustained their desire not to rent school premises in
off hours to religious organizations if, instead of saying "we will not rent to
religious organizations," they had simply established a rule that they would
not rent to any organization that dicriminated on the basis of religion in the
selection of its leaders?
-- Daniel Bort
-----Original Message-----
From: Volokh, Eugene <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Sat, 20 May 2006 20:41:57 -0700
Subject: RE: Making a distinction
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:religionlaw-bounces%40lists.ucla.edu>
> [mailto:[EMAIL PROTECTED]
<mailto:religionlaw-bounces%40lists.ucla.edu> ] 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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