Quite apart from Justice Breyer's view of the matter, the all comers policy does seem fantastical since it wasn't cited by Hastings until after the matter was in suit and recognized student organizations had all sorts of limitations on who could become voting members or officers. One even had a racial exclusion. All were unrenarked upon by Hastings until this case came along. While I understand that the plaintiffs stipulated that that this was in fact at least one policy, it does seem like a contrivance (which doesn't mean it can be upheld).
It is certainly the case that lawyers ought to learn to see (or, better put, understand the arguments on all sides of an issue) but it seems unlikely that an all comers policy will serve that end. Either no dissenters will join CLS, i.e., the takeover will not happen either due to incentives for cooperation or some other reason (in which case the all comers policy serves no real purpose) or they will in which case the group's message will be bent to the consensus. While that might happen because CLS members will be persuaded to abandon their retrograde ways, it seems just as likely - if not more likely - that the group's message will be diluted by the inclusion of those who don't share it. The end result is not to encourage diversity of viewpoints but to drive the range of viewpoints to those held by a consensus of students or, perhaps more accurately, a consensus of those students who find the expression of divergent points of view to be offensive or discriminatory. In any event, requiring CLS to accept those with differing points of view as voting members (as opposed to permitting them to attend and participate in CLS events as is already the case) is hardly the least restrictive alternatives. Of course, the case goes beyond Rosenberger's facts, but not necessarily its rationale. Hastings policy discriminates against creedal groups, i.e., those who define themselves by the desire to adhere to and promote some particular viewpoint. It is certainly an extension of the law to say that Rosenberger's prohibition against restricting participation in a forum to viewpoints about temporal matters might also cover restricting participation to those who insist on no particular point of view, but I am not sure it is an unreasonable one. 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 hamilto...@aol.com [hamilto...@aol.com] Sent: Monday, May 10, 2010 4:07 PM To: religionlaw@lists.ucla.edu Subject: Re: Factual Clarification re CLS I think Rick misreads Justice Breyer's comments. He was playing Michael, saying, tongue-in-cheek, that it would be "fantastical" that there would be this open exchange between opposing views on a law school campus. Michael was resisting agreeing that such an exchange was likely or good, and so Breyer needed to bring him back to another view of the universe to get Michael to answer the question he wanted answered. Careful reading of the transcript does not support Rick's interpretation. I think a law school has a compelling interest in having an all-comers policy, because it encourages lawyers to see all sides of every issue, regardless of their existing predispositions, which is crucial to becoming a good lawyer, no? In any event, this case is not about whether or not this group can protect its associational rights to exclude certain believers and actors. It is about whether a public university law school must provide certain meeting rooms and certain bulletin boards and money to a group that insists on exclusionary practices among its voting membership and leadership. There are no rules that forbid the group from meeting or holding the beliefs it holds. It is an attempt to move Rosenberger beyond its facts. I thought Rosenberger was wrongly decided, but cleverly argued. I think the Court needs to draw the line on this foolhardy doctrine before schools are required to have to pay for all worship services, which surely is not required by the First Amendment. Only Chief Justice Roberts and Justice Alito made any real effort to defend CLS's position, which seems to me to bode well for Martinez. But I would not have thought it possible that a majority of the Supreme Court today would ! agree that white crosses are the standard marker for our diverse array of soldiers, so as usual, it will be interesting to see what happens. Marci In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, icl...@law.gwu.edu writes: This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to "invade and destroy" the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to "all comers" (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ---- Original message ---- >Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan ><nebraskalawp...@yahoo.com>) >Subject: RE: Factual Clarification re CLS >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > Interestingly, Hastings takes the position that the > policy it is enforcing against the CLS is not a > sexual orientation policy, but an "all comers" > policy, a policy that forbids any group from > discriminating against any person who wishes to be a > member. Under this policy, an NAACP student group > would have to admit racists as voting members and > even leaders of the group, and the Young Republicans > would have to allow democrats to be voting members > and leaders. > > I think the school took this tack to avoid the > viewpoint discrimination argument, but may have > substituted an even greater problem for the one it > seeks to avoid. > > The school may even lose Justice Breyer, who in the > oral argument referred to the policy as > "fantastical" and as creating a silly kind of forum > in which "everyone gets together in a nice > discussion group and hugs each other." > > That led Mike McConnell to conclude that the policy > does not even provide a rational basis for excluding > a student group from a forum with the stated purpose > of creating a diverse marketplace of ideas. As Mike > put it, the all comers policy does not even slightly > advance the stated purpose of the forum, and indeed > is destructive of that purpose by prohibiting groups > from having a membership policy based upon its > organizing principles and beliefs. > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "And against the constitution I have never raised a > storm,It's the scoundrels who've corrupted it that I > want to reform" --Dick Gaughan (from the song, > Thomas Muir of Huntershill) >________________ _______________________________________________ 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. 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