Is that right? Were there any married same-sex couples in California at the time the litigation began? I'm unsure if the 2004 weddings were legally recognized. If there weren't any legally married couples, CLS' policies, like so many laws based on marital status, only became 'discriminatory' once *In re marriage cases *came out.
On Mon, May 4, 2015 at 12:55 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > FWIW, the CLS policy in *CLS v. Martinez* was not neutral on its face: > It required members to "conduct their lives in accord with prescribed > principles," among which was "that sexual activity should not occur > outside of marriage *between a man and a woman*." This was in effect > neutral as between straight and gay *unmarried* students -- none could > have sex -- but it was not neutral as between married straight and gay > students: Only the latter could not join. As Doug says, such a "rule > against sex outside of an opposite-sex marriage will facially discriminate > on the basis of sexual orientation." > > More to the point, the Court did not opine on whether the CLS rule was or > was not discriminatory on the basis of sexual orientation, because the > Court construed the school's policy to require clubs to accept *all *students; > therefore, CLS would have been disqualified from recognition even if it had > "only" excluded from membership all sexually active unmarried students, gay > and straight alike. > > I do not deny that, after *Obergfell*, there might be some schools--not > many, but some--that expressly retain and enforce a "no sex outside of > man/woman marriage" policy for students. If there are, however, it is > highly unlikely that such schools will risk a loss of federal benefits, let > alone loss of tax-exempt status, for the reasons I offered earlier. > > > On Mon, May 4, 2015 at 12:57 PM, Doug Laycock <dlayc...@virginia.edu> > wrote: > >> I generally agree with Marty. But it is very troubling that the SG >> wouldn’t say something like that. >> >> >> >> A couple of caveats: In *CLS v. Martinez*, the Court treated a neutral >> rule against sex outside of marriage as discrimination against gays. And >> once there is same-sex marriage throughout the land, a rule against sex >> outside of an opposite-sex marriage will facially discriminate on the basis >> of sexual orientation. >> >> >> >> Douglas Laycock >> >> Robert E. Scott Distinguished Professor of Law >> >> University of Virginia Law School >> >> 580 Massie Road >> >> Charlottesville, VA 22903 >> >> 434-243-8546 >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Monday, May 04, 2015 8:15 AM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: Religious organizations, tax-exempt status and same-sex >> marriage >> >> >> >> Please allow me to use Michael's final question as a way of turning this >> thread back to its original topic--namely, whether a decision for the >> petitioners in *Obergefell* would have any *legal *impact on religious >> colleges and universities that adhere to the view that same-sex marriage is >> immoral. I think it won't, basically for the following reasons: >> >> >> >> 1. Even today, several institutions, such as Notre Dame, (at least >> nominally) prohibit their students from engaging in extramarital sex at >> all; but very few purport to treat LBGT students differently from straight >> students in this regard, or to otherwise facially discriminate on the basis >> of sexual orientation. That is to say: There remains some such >> discrimination at some schools . . . but not much, and the exceptions will >> become even rarer over time, for reasons wholly independent from legal >> compulsion. >> >> >> >> As to those rare schools that do continue to discriminate . . . >> >> >> >> 2. It will be a while (if at all) before Congress amends Title IX to >> prohibit recipients of federal funds from discriminating on the basis of >> sexual orientation. >> >> >> >> 3. And if and when Congress does amend Title IX, I think it is almost >> inconceivable that it would not retain the current exception in 1681(a)(3) >> for "an educational institution which is controlled by a religious >> organization if the application of this subsection would not be consistent >> with the religious tenets of such organization." Therefore, there won't be >> any threat of a federal funding cut-off. >> >> >> >> 4. Moreover, as long as Title IX continues to include 1681(a)(3)--whcih >> it will--I can't imagine the IRS ever even considering withdrawing >> tax-exempt status from a school entitled to that exemption, if for no other >> reason than that it would be on very weak statutory grounds in doing so as >> long as Title IX expressly exempts such schools. (By contrast, recall that >> in *Bob Jones*, the Court stressed that Congress already had, in Title >> VI and "numerous [other] enactments since then," established a categorical >> public policy forbidding racial discrimination in public and private >> schools.) >> >> >> >> >> >> On Mon, May 4, 2015 at 12:20 AM, Michael Worley <mwor...@byulaw.net> >> wrote: >> >> >> >> 4) Assuming opposition to same-sex marriage is seen as irrational, is >> there any reason universities should be allowed to discriminate against >> same-sex couples? >> >> I ask these questions because in my mind, a ruling based on "no rational >> basis" impacts the public square in such a way that makes any university >> that holds the religious values we've mentioned (and at least 10 or 20 will >> continue to do so) up for attack? I feel like you see a distinction I'm >> missing here, or oppose a ruling based on the lack of rational basis. >> >> I look forward to your and any others responses. >> >> >> Thanks, >> >> Michael >> >> >> >> >> _______________________________________________ >> 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. > -- Michael Worley J.D., Brigham Young University
_______________________________________________ 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.
