CLS does not claim that it should be treated differently from political
groups. Hastings' written rule treated religious groups differently, because
it prohibited religious discrimination but did not prohibit political
discrimination. The only groups that could not organize around a viewpoint were
religious group. It's all comers rule is egregiously unconstitutional as to
political groups as well as to religious groups.
Quoting Sanford Levinson <slevin...@law.utexas.edu>:
> I can't figure out exactly why religious groups deserve to be treated
> differently from, say, the young Democrats or Republicans or the
> Sierra Club. The Constitution says not that we have to treat
> religion differently, but, rather, that we have to keep engaging in
> an endless conversation about the interplay of religion and state.
> Sometimes that might require "different" treatment, as in
> accommodating people who are unwilling to work on Saturday. Note,
> though, that the Court, rightly or wrongly, refused to extend the
> "conscientious objector" accommodation to a serious Catholic who was
> opposed only to the Vietnam War (on "just war" grounds). Nor, of
> course, was the Court generous to Native Americans either in Lyng or
> Smith, both of which, I have to say, seemed more appealing, on their
> facts, than the CLS case. But none of these cases really involved the
> "freedom of association" arguments that are really at the heart of
> the argument.
>
> Am I correct, incidentally, that the principle being advocated for
> would allow any religious society to restrict its leadership to males
> if it had a religious principle that only men were fit for such
> roles? Judge (now Professor) McConnell seemed to emphasize the
> belief-status distinction in his argument, but I'm not sure I
> understand it when the justification for status discrimination is a
> sincere (and quite traditional, often) religious belief. The
> argument that "we, as a society" have decided that race and
> sex/gender are just different from other categories of
> differentiation certainly can't hold, at least for the latter, since
> I'm confident that McConnell (and, I suspect, almost everybody on
> this list) would not allow a Title VII-like action against the
> Catholic Church or Orthodox Judaism or even strip those religions of
> their tax exemption because of their blatant sexism.
>
> Having read the oral argument, incidentally, I do wonder if there
> will be an effort simply to dismiss it as improvidently granted,
> given that most of the time seemed to have been spent on trying to
> figure out what exactly were the facts and the relationship between
> various stipulations and "written policies" of the Law School.
>
> sandy
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A.
> Runquist
> Sent: Tuesday, May 11, 2010 11:29 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: A real-life on-campus example
>
>
> On 5/10/2010 8:21 PM, Steven Jamar wrote:
>> Religion and religious organizations are different from other
>> organizations. The constitution says we need to treat religion
>> differently. Unless we decide that speech and association and equal
>> treatment principles trump the religion clauses, we need to give them
>> effect somehow -- both the free exercise and establishment clauses.
>>
> And the constitution does not say that religious organizations are to be
> treated worse than all other groups. The government cannot establish
> religion, but it also cannot prohibit the free exercise of religion.
> Yet that, it seems to me, is exactly what the college is trying to do here.
>
>> What would be the result if the university made an exception for
>> religious organizations -- then it is not treating the religious
>> organization equally.
> As long as all religious organizations are treated the same way, then
> there is no violation. If, for example, it allowed CLS to meet but
> prohibited a Muslim group from meeting, then this would be not treating
> the religious organizations equally.
>
> Lisa
>
> --
> Lisa A. Runquist
> Runquist& Associates
> Attorneys at Law
> 17554 Community Street
> Northridge, CA 91325
> (818)609-7761
> (818)609-7794 (fax)
> l...@runquist.com
> http://www.runquist.com
>
>
>
> _______________________________________________
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> _______________________________________________
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>
>
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
_______________________________________________
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