Douglas Laycock is certainly correct that CLS' statement of belief also calls for heterosexual students to refrain from sex outside of marriage, but I am not sure that does much work in resolving the tension between the desire to prohibit discrimination based on a status that is tied to at least a desire to engage in certain forms of behavior and the assertion of an associational right that excludes anyone who acts on that status. Nor does it change the fact that CLS most certainly - and quite explicity - draws a distinction between sexual orientation and acting on that orientation.
In response to David Cruz' question, CLS would not extend membership to persons engaged in sexual activity within a same sex marriage or civil union. Its policy is not simply about sex outside of a marriage without regard to sexual orientation. CLS would exclude sexually active homosexuals even if, for example, Prop 8 was declared unconstitutional or improperly enacted, and those couples were married. CLS' statement of belief calls for members to refrain from "all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.” So, at the same time that it insists on sex within marriage, it makes clear that marriage may not be between persons of the same sex. CLS certainly believes that its policy creates a "distinction between sexual orientation and sexual conduct" - although I agree that it is not simply that. In its letter to its Hastings requesting recognition, CLS quite forthrightly said that a "person who engages in homosexual conduct or adheres to the viewpoint that homosexual conduct is not a sin" cannot be a chapter officer or member. It also said that a person "who has homosexual inclinations ut does not engage in or affirm homosexual conduct" can be an officer or member. Now, I don't think its entirely unfair to say that this has a disparate impact on gays and lesbians (and, if it is unfair, it is certainly not because there are many more heterosexuals than homosexuals.) The policy excludes all sexually active homosexuals but only those sexually active heterosexuals who have sex outside of marriage. But I don't see the notion of disparate impact as helpful at all. The question, rather, is whether CLS' rights of association entitle it to make that distinction or, in the particular context of public fora analysis, whether Hastings decision to condition recognition of the group as a student organization is viewpoint neutral. My own view is that CLS - certainly outside the public forum context but, I would argue, within it as well - should be permitted to exclude those who do not share its views. Pushed to its logical conclusion, this may result in hard cases in which the question becomes whether these associational rights can be pushed to permit the exclusion not only of those persons who wish to act on a status but who adhere to views about that status on which otherwise applicable antidiscrimination law is based. Rick Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [layco...@umich.edu] Sent: Monday, May 10, 2010 11:53 AM To: Law & Religion issues for Law Academics Subject: Factual Clarification re CLS CLS's membership policy does not turn on the . 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. Quoting "Esenberg, Richard" <richard.esenb...@marquette.edu>: > CLS v. Martinez occurred to me too. Although there are the > complications of public fora analysis, it seems to me that the case > may begin a process of facing the inevitable conflict presented by > efforts to define a perspective that is still shared by a significant > portion of the population - perhaps even a majority - as invidious > discrimination. This strikes me as fundamentally different from our > experience with race and gender. The national (if not, in the case of > race, southern) consensus led, rather than trailed, the law. > > The difficulty of this reconciliation is reflected in the litigating > positions taken in Martinez. Hastings has retreated from the idea > that it can restrict the particular point of view expressed by CLS > arguing (rather fantastically in my view) that it merely wishes to > prohibit any student organization from excluding anyone from > leadership based on point of view. In Hastings' forum, cats must live > with dogs, Democrats must welcome Republicans, and PrideLaw must > accept congregants of the Westboro Baptist Church. Even if this works > in the context of public fora analysis (and I don't think it does), > it won't help in other contexts. > > CLS, on the other hand, says that it has no desire to exclude gays > and lesbians as long as they are willing to affirm that to act on > their sexual orientation would be a sin. > > To some, this is an odd distinction. When I debated CLS v. Martinez > with Shaun Martin at the Unviversity of San Diego Law School, he > referred to to it as saying "well, ... I'm not gay gay." CLS, in the > views of some, has simply recast an exclusion based on status as an > exclusion based on belief. > > I think Chris' hypothetical raises that issue more starkly than CLS. > We can imagine that some (although perhaps not many) gays and > lesbians might well believe that acting on his or her sexual > orientation would be wrong and would be willing to affirm CLS' > statement of belief. > > But a woman who accepts Ordinatio Sacerdotalis will not present > herself for ordination. Viewing the exclusion as an exercise of a > right of expressive association rather than sex discrimination > effectively excludes women from the leadership position at issue. > > Maybe that's OK for religious organizations even if Smith has put > paid to the ministerial exception. > > But what about the secular world? What about a kinder and gentler > version of the Little Rascal's He-Man Woman Haters Club, say the > Legion for Preservation of Motherhood and the Traditional Family > formed to advocate for, among other things, traditional gender roles. > Might it say that it will only hire women who sign a statement that > says married women should not work outside of the home. > > Beyond that, could it take the postion that hiring women (or even > admitting them to membership meetings in the evening when they should > be at home with the children) would interfere with their expressive > message? As I recall, the Boy Scouts' policy was to exclude avowed > homosexuals. > > I guess its evident that I really don't want to start grading today. > > Professor Rick Esenberg > Marquette University Law School > Sensenbrenner Hall 321C > 1103 W. Wisconsin Avenue > Milwaukee, WI 53201 > (o) 414-288-6908 > (m)414-213-3957 > (f) 414-288-6975 > > > > > ________________________________ > From: religionlaw-boun...@lists.ucla.edu > [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock > [layco...@umich.edu] > Sent: Sunday, May 09, 2010 8:42 AM > To: religionlaw@lists.ucla.edu > Subject: Re: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > This questions were actually posed in Dayton Christian Schools, which > went off on Younger grounds in the Supreme Court in 1986. Got a > hostile opinion on the merits in the Sixth Circuit. > > They are also lurking in CLS v. Martinez, argued April 19. CLS > requires a statement of faith, which everyone agrees is religious, > and it requires a good faith effort to live up to Christian morality, > which precludes unrepentant nonmarital sex. That's clearly religious > for CLS; Hastings claims it is sexual orientation discrimination. > > Quoting Christopher Lund <ed9...@wayne.edu>: > >> No problem with you missing it, Eugene -- it actually proves we're >> thinking alike. I agree with everything you said, and I think it >> unlikely the Catholic Church would do this. (Although note Ordinatio >> Sacerdotalis does end with the line, “We declare that the Church has >> no authority whatsoever to confer priestly ordination on women and >> that this judgment is to be definitively held by all the Church's >> faithful.”). >> >> In any event, the main issue I’m trying to think about is this. The >> statutory exception, as written, only gives churches a shield against >> claims of religious discrimination. But, in practice, it should >> provide protection from any type of discrimination claim -- as long >> as the discrimination is not just a church practice but a core church >> belief. And this has ex ante effects; by adopting certain doctrines, >> churches can expand the protection of the statutory exception. If >> the Supreme Court rejects the ministerial exception, the Catholic >> Church could essentially get it back by requiring all priests to >> assent to Ordinatio Sacerdotalis. >> >> This may all be right, but it seems a little counterintuitive. Here >> are two other situations I’ve been thinking about. >> >> Nonministerial employees. Imagine a twist on Amos. A church has a >> strict church policy of not allowing women in any job position. All >> church members must agree with it. A female janitor applies for a >> job. The church denies her employment, on the grounds that she does >> not follow church policy. No claim, I guess, because this is >> protected religious discrimination? >> >> Retaliation claims. Say a church has a policy that all disputes have >> to be handled within a set procedure established by the church. Does >> this give the church a shield against retaliation claims? That is, >> if a continuing employee files a sex/race discrimination claim and >> the church then terminates them for disobeying that church doctrine, >> is the church insulated from the employee’s retaliation claim >> (because it's not really retaliation, it's religious discrimination)? >> >> Best, >> Chris >> >> ----- Original Message ----- >> From: "Eugene Volokh" <vol...@law.ucla.edu> >> To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> >> Sent: Saturday, May 8, 2010 5:49:05 PM GMT -05:00 US/Canada Eastern >> Subject: RE: Question About The Statutory Title VII Exception and the >> Constitutional Ministerial Exception >> >> Rats -- very sorry, completely missed that. But is it really the >> case that the Church would indeed refuse to ordain priests that >> disagree with its position? If so, and especially if the Church >> asked every applicant his or views and categorically rejected all, >> male or female, who disagreed with the Church on this matter, then >> maybe this would indeed be religious discrimination and not sex >> discrimination. But it would also be pretty expensive for the >> Church, it seems to me, since it would disqualify quite a few >> otherwise qualified candidates, at a time when people (or at least >> Americans) aren't (to my knowledge) rushing into the priesthood. >> >>> -----Original Message----- >>> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>> boun...@lists.ucla.edu] On Behalf Of Christopher Lund >>> Sent: Saturday, May 08, 2010 1:31 PM >>> To: Law & Religion issues for Law Academics >>> Subject: Re: Question About The Statutory Title VII Exception and the >>> Constitutional Ministerial Exception >>> >>> Eugene, I think I built this into the original hypo (last line) -- >>> the part about how >>> the Church "throws in the fact that it would also refuse to ordain men who >>> opposed Ordinatio Sacerdotalis." If the Church does that, is it now >>> protected by >>> the statutory exemption? >>> >>> Best, >>> Chris >>> >>> ----- Original Message ----- >>> From: "Eugene Volokh" <vol...@law.ucla.edu> >>> To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> >>> Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern >>> Subject: RE: Question About The Statutory Title VII Exception and the >>> Constitutional Ministerial Exception >>> >>> Well, if the Church is willing to have as priests men who >>> disagree with >>> the church about the ordination of women, but rejects women who disagree >>> with the church about the ordination of women, then isn't that sex >>> discrimination and not religious discrimination? So I do think that >>> the ministerial >>> exception is necessary to leave the Church with this flexibility (and is >>> strengthened by Boy Scouts v. Dale). >>> >>> Eugene >>> >>> > -----Original Message----- >>> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>> > boun...@lists.ucla.edu] On Behalf Of Christopher Lund >>> > Sent: Saturday, May 08, 2010 11:16 AM >>> > To: Law & Religion issues for Law Academics >>> > Subject: Question About The Statutory Title VII Exception and the >>> Constitutional >>> > Ministerial Exception >>> > >>> > I had a question for the listserv. Title VII has a statutory >>> exception that allows >>> > religious organizations to discriminate in employment on the basis >>> of religion. >>> > There’s also the constitutional ministerial exception, which >>> allows religious >>> > organizations to discriminate with regard to any characteristic >>> (race, sex, etc.) >>> in >>> > ministerial positions. There’s controversy as to whether the ministerial >>> > exception survives Smith. (I think it should and it does, but >>> forget that for >>> now.) >>> > >>> > For now, let’s say it doesn’t. Let’s say the ministerial >>> exception disappears. >>> > What happens? In particular, how much of the ministerial exception’s >>> > protection is already provided by the existing statutory right of >>> religious >>> groups >>> > to religiously discriminate? I think this question has huge >>> ramifications (even >>> as >>> > regards our present world where the ministerial exception does exist). >>> > >>> > Imagine this happens. The ministerial exception disappears and a woman >>> brings >>> > suit against the Catholic Church, seeking to enter the priesthood. >>> The Catholic >>> > Church refuses to allow her. She brings a sex discrimination claim. The >>> Catholic >>> > Church defends by claiming that they are discriminating not on the >>> basis of >>> > gender, but on the basis of religion. This woman clearly opposes a core >>> > teaching of the Church, expressed in Ordinatio Sacerdotalis among other >>> things, >>> > that priests must be men. The woman calls this pure bootstrapping—-the >>> > Church cannot convert its right to religiously discriminate into a >>> right to >>> engage >>> > in obvious sex discrimination. The Church points to its >>> longstanding belief in >>> the >>> > male-only priesthood and throws in the fact that it would also >>> refuse to ordain >>> > men who opposed Ordinatio Sacerdotalis. >>> > >>> > Who wins this case in a world with no ministerial exception? >>> > _______________________________________________ >>> > 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. >>> _______________________________________________ >>> 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. >>> _______________________________________________ >>> 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. >> _______________________________________________ >> 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. >> _______________________________________________ >> 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. > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > _______________________________________________ > 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ 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.
