But is it a constitutional violation? I would tend to agree that the
government ought to accommodate religious associations and give them
equal access to government facilities and should grant religious
associations exemptions from certain non-discrimination rules that
apply to secular organizations.
But, should this be a constitutional rule? Isn't the "all comers"
rule a quintessential neutral rule of general applicability so
religious organizations are bound by it? So no free exercise violation.
Isn't a rule that says "only those who abid by our non-discrimination
policy are entitled to government benefits" (like funding,
certification, contracts) constitutional under every theory?
And no one is stopping CLS or any other organization from freedom of
association or freedom of speech. And Rosenberger shows how far
freedom of speech can push the government to support religion. (If we
apply Rosenberger we get the result that there is no establishment if
the university exempts CLS, right?)
So, those wanting to further constitutionalize church and state
relations fail on the religion clause and equal protection, fail on
freedom of association and freedom of speech grounds.
So we come to a new version of constitutionalizing church and state
relations -- government sponsorship of religious groups that
discriminate on banned bases under an "expressive association"
theory. (For you originalists, where is that in the constitution?)
No. This battle belongs in the political processes, not in the
Constitution. If the CLS case is so strong on the merits of fairness
and equality and expression and association, why isn't it implemented
through the political process? Because people are evil and out to get
CLS? Nah. It is because people want to reduce discrimination on the
basis of sexual orientation.
But, like so many things, we tend to make such matters constitutional
issues and so this is as well, no doubt.
As a policy matter, I would exempt religious organizations from this
particular non-discrimination, equal treatment requirement -- it
really is not the same as race. But, I'm not at all sure I would
reach the same result as a constitutional question.
Religion is different and requires different treatment. Not all
speech and association rules apply to trump that difference.
Steve Jamar
On May 13, 2010, at 8:32 AM, Esenberg, Richard wrote:
The right of expressive association is not a demand for government
protection in the market place of ideas or a demand for government
support. It is, rather, a shield against government compulsion,
i.e., the demand that an organization not define itself by adherance
to any particular creed or that it engage in practices inconsistent
with its expressive message or core beliefs. While in the public
forum context, it might involve access to a government benefit but
that is a function of the government's decision to establish a forum
and the (quite reasonble rule) that, if it chooses to do so, it may
not discriminate on the basis of viewpoint.
This doesn't immunize religious organizations from the market place
of ideas which, in any event, does not work as she thinks it does.
Churches regularly impose creedal requirements on clergy, leaders
and members. If congregants don't like it, they leave much as those
who don't like CLS policy could leave as well.
The problem with "takeovers" - whether effected through rules of a
public forum or antidiscrimination laws - is that they would
undermine the capacity of minority or, more specifically, unpopular
groups to associate for a particular expressive purpose because, as
soon as they choose to combine, they must be prepared, in this
context, to permit others to come in and not simply expose their
creed to the market place of ideas (that happens in all events) but
to vote it out.
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: Thursday, May 13, 2010 7:09 AM
To: Law & Religion issues for Law Academics
Subject: Re: A real-life on-campus example
It is not majoritarian but rather the marketplace. Expressive
association is a new right with little justification in history and
I am beginning to think a large step toward government sponsored
Balkanization
Does the government have an obligation to make sure dwindling
religions remain viable. I would say absolutely not. But apparently
Mark would disagree?
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu>
Date: Wed, 12 May 2010 19:11:04
To: <religionlaw@lists.ucla.edu>
Subject: RE: A real-life on-campus example
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--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Next the statesmen will invent cheap lies, putting the blame upon the
nation that is attacked, and every man will be glad of those
conscience-soothing falsities, and will diligently study them, and
refuse to examine any refutations of them; and thus he will by and by
convince himself that the war is just, and will thank God for the
better sleep he enjoys after this process of grotesque self-deception."
Mark Twain in "The Mysterious Stranger"
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