I'm not sure my understanding of the CLS policy agrees 100% with Doug's. Whether or not you call it a disparate impact, I believe there is what groups like Lambda have been litigating as an insurmountable obstacle faced by same-sex couples that different-sex couples don't face. My understanding was that the CLS policy excluded people who were not in what CLS considered a biblical marriage; that is, I thought CLS didn't care if a same-sex couple was civilly married in the few months it was legal in California, for example, but instead maintained that a same-sex relationship *couldn't be* a marriage (in the biblical sense) and hence same-sex couples could not ever have marital sex (regardless of civil law). Thus, if I'm right, it's possible for straight people to be sexually active and members of CLS, but not for gay people.
If, however, Doug or someone can point to evidence that CLS accepts sexual activity within a *civil* same-sex marriage, then it would be more complicated though not necessarily impossible to conclude that there is no sexual orientation discrimination. But if my understanding is right, I think there is sexual orientation discrimination (as I reject the notion that it wouldn't discriminate against gay and lesbian people to say, you're as free as straight people to marry and have sex with a person of a different sex, and straight people are as forbidden as gay and lesbian people to have sex with a person of the same sex). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On May 10, 2010, at 9:53 AM, Douglas Laycock wrote: CLS's membership policy does not turn on the distinction between sexual orientation and sexual conduct. CLS's rule prohibits any unrepentant sexual relationships outside marriage, whether same-sex or opposite-sex. There is no classification based on sexual orientation. There is no disparate impact; there no are no doubt many more Hastings students in sexually active opposite-sex relationships than in sexually active same-sex relationships. It is true that the opposite-sex couples could legally get married, and the same-sex couples could not, but that has little relevance to the unmarried opposite-sex couples, who are unmarried for a reason: they are finanically or emotionally unprepared for marriage, or not yet ready to settle down, or commit, or whatever. Most of the same-sex couples are probably int he same situation in addition to being legally unable to marry. Anyone who is having sex and for whatever reason isn't married is excluded by the CLS rule. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
