RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception

[Esenberg, Richard]

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 :

> 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,
> ch

Factual Clarification re CLS

[Douglas Laycock]

CLS's membership policy does not turn on the distinction between sexual 
orientation and sexual conduct.  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" :

> 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 Apri

Re: Factual Clarification re CLS

[David Cruz]

I'm not sure my understanding of the CLS policy agrees 100% with Doug's.  
Whether or not you call it a disparate impact, I believe there is what groups 
like Lambda have been litigating as an insurmountable obstacle faced by 
same-sex couples that different-sex couples don't face.  My understanding was 
that the CLS policy excluded people who were not in what CLS considered a 
biblical marriage; that is, I thought CLS didn't care if a same-sex couple was 
civilly married in the few months it was legal in California, for example, but 
instead maintained that a same-sex relationship *couldn't be* a marriage (in 
the biblical sense) and hence same-sex couples could not ever have marital sex 
(regardless of civil law).  Thus, if I'm right, it's possible for straight 
people to be sexually active and members of CLS, but not for gay people.

If, however, Doug or someone can point to evidence that CLS accepts sexual 
activity within a *civil* same-sex marriage, then it would be more complicated 
though not necessarily impossible to conclude that there is no sexual 
orientation discrimination.  But if my understanding is right, I think there is 
sexual orientation discrimination (as I reject the notion that it wouldn't 
discriminate against gay and lesbian people to say, you're as free as straight 
people to marry and have sex with a person of a different sex, and straight 
people are as forbidden as gay and lesbian people to have sex with a person of 
the same sex).

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On May 10, 2010, at 9:53 AM, Douglas Laycock wrote:

CLS's membership policy does not turn on the distinction between sexual 
orientation and sexual conduct.  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.

___
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Re: Factual Clarification re CLS

[Hamilton02]

 
David-- I agree with your point here, and would note that it sounds just  
like the defense in Loving v. VA.

I reject  the notion that it wouldn't discriminate against gay and lesbian 
people to  say, you're as free as straight people to marry and have sex with 
a person of  a different sex, and straight people are as forbidden as gay 
and lesbian  people to have sex with a person of the same sex


The problem I think with mediating any disagreement regarding the policies  
in CLS v Martinez is that both sides seemed to shift  positioning from 
court to court and from brief to brief and then even at  oral argument.  I 
think 
we are dealing with a moving target  basically.  
 
Marci
___
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Re: Factual Clarification re CLS

[Douglas Laycock]

I agree with David on the facts.  A same-sex couple married during California's 
window could not join CLS, as I understand it.  That is sexual orientation 
discrimination, which CLS defends on the basis that anyone in such a marriage 
has demonstrated that he doesn't subscribe to the statement of faith.  That 
case, if there is such a couple at Hastings, squarely poses the issue Chris 
Lund raised that started this thread.

Apart from couples who married in the window, the inability to marry is imposed 
by the State of California. It is a bit odd for a state agency to rely on the 
state's discriminatory policy as a basis for turning CLS's policy about 
extramarital sex into sexual orientation discrimination and for overriding a 
religious organization's freedom to associate in support of its beliefs.

Quoting David Cruz :

> I'm not sure my understanding of the CLS policy agrees 100% with 
> Doug's.  Whether or not you call it a disparate impact, I believe 
> there is what groups like Lambda have been litigating as an 
> insurmountable obstacle faced by same-sex couples that different-sex 
> couples don't face.  My understanding was that the CLS policy 
> excluded people who were not in what CLS considered a biblical 
> marriage; that is, I thought CLS didn't care if a same-sex couple was 
> civilly married in the few months it was legal in California, for 
> example, but instead maintained that a same-sex relationship 
> *couldn't be* a marriage (in the biblical sense) and hence same-sex 
> couples could not ever have marital sex (regardless of civil law).  
> Thus, if I'm right, it's possible for straight people to be sexually 
> active and members of CLS, but not for gay people.
>
> If, however, Doug or someone can point to evidence that CLS accepts 
> sexual activity within a *civil* same-sex marriage, then it would be 
> more complicated though not necessarily impossible to conclude that 
> there is no sexual orientation discrimination.  But if my 
> understanding is right, I think there is sexual orientation 
> discrimination (as I reject the notion that it wouldn't discriminate 
> against gay and lesbian people to say, you're as free as straight 
> people to marry and have sex with a person of a different sex, and 
> straight people are as forbidden as gay and lesbian people to have 
> sex with a person of the same sex).
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On May 10, 2010, at 9:53 AM, Douglas Laycock wrote:
>
> CLS's membership policy does not turn on the distinction between 
> sexual orientation and sexual conduct.  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.
>
> ___
> 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___
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Faith Base Banking

[Paul Finkelman]

Are there First Amendment issues here? Or more precisely, should there be bank 
regulations -- or civil rights regulations -- that preclude religious banks? Or 
is this just run-of-the-mill corruption (assuming the indictments lead to 
conviction, and the banks are not innocent).

==


The New York Times

May 7, 2010 



2 
at Faith-Based
Bank Are Indicted Over Bribes 

By ROBBIE BROWN 



ATLANTA
— When government regulators here shut down Integrity Bank at the height
 of the
recession, in August of 
2008,
the bank was seen as just another failed lender that had overvalued the 
real
estate market and collapsed.  

But
a federal indictment unsealed on Friday accused two former vice 
presidents at
the bank of hastening its downfall by selling fraudulent loans to a 
hotel
developer in exchange for bribes.  

The
two executives, Douglas Ballard and Joseph Todd Foster, were charged 
with
conspiracy, insider trading and bank fraud, according to the indictment.
 Mr.
Ballard was also charged with bribery. The developer, Guy Mitchell, who
received $80 million in loans, was charged with conspiracy and bribery. 
 

   

Founded on Christian principles 
in 2000 in an Atlanta suburb,
Integrity used the motto “In God We Trust.” The bank gave customers free
Bibles, and employees prayed together at meetings. Onetime
investors included a Georgia state senator and the former CNN host Lou Dobbs.  

   

But
in announcing the indictment, the United States attorney Sally Quillian 
Yates
said Mr. Ballard and Mr. Foster had not lived up to the bank’s name or 
mission.
 

“A
number of banks have suffered from the plummeting real estate market, 
but this
bank was robbed from the inside,” she said.  

Mr.
Ballard, 40, and Mr. Foster, 42, could not be reached for comment on 
Friday and
will be arraigned at a later date. Mr. Mitchell, 50, pleaded not guilty 
at a
federal courthouse in Atlanta.  

A
lawyer for Mr. Mitchell, Edward Garland, said his client had been a 
law-abiding,
profitable customer for the bank. “The collapse of the economy caused 
the bank
failure, not his activity,” Mr. Garland said.  

Georgia
leads the nation in bank failures, with 38 banks having closed since 
2007,
according to the Federal
Deposit
 Insurance Corporation. The state’s woes have generally been blamed
on underregulation and overinvestment in real estate. But the Integrity 
case is
a different matter.  

“These
indictments are very unusual,” said A. James Elliott, associate dean of Emory 
University 
School of
Law, an expert in banking law.  

From
2004 to 2006, Mr. Mitchell, who lives in Coral Gables, Fla., and has 
developed
hotels, shopping centers and other commercial real estate, received the 
$80
million in loans from Integrity, the indictment says. His holdings 
include the
upscale Casa Madrona Hotel and Spa in Sausalito, Calif., and the Royal 
Palm
Hotel near Miami.  

The
indictment charges that he obtained much of the money under false 
pretenses and
deposited nearly $20 million in a personal checking account, with which 
he
bought luxury items, including a $1.5 million private island in the 
Bahamas.  

The
indictment charges that Mr. Mitchell made few, if any, payments on the 
loans.
Instead, it says, he took additional loans, and his debt ballooned. In 
return
for lenience, Mr. Mitchell paid Mr. Ballard more than $230,000 in 
bribes, the
indictment says. It also accuses the two bank executives of engaging in 
insider
trading by selling Integrity stock.  

“After
passing out $80 million to the developer like it was Monopoly money, 
both
officers dumped their Integrity stock before the failed loans came to 
light,”
Ms. Yates said.  

But
Mr. Garland, the defense lawyer, said Mr. Mitchell was in compliance 
with
banking regulations and merely used a central bank account for both 
personal
and business expenses, adding, “We expect to show that he is completely
innocent.”  

Integrity
reported assets of $1.1 billion when it was sold to a unit of the Regions 
Financial
Corporation in 2008. The bank had been a prominent example of 
faith-based
banking in Georgia, with five locations.  

The
bank’s founder, Steven M. Skow, a Lutheran, said it gave away 10 percent
 of
annual profits to churches and faith-based charities, donating $1.7 
million in
2007. Mr. Skow said it did not discriminate against non-Christians. 
 

“We
weren’t selling religion,” he said. “We just managed the bank on godly
principles, like the golden rule.”  

Mr.
Skow, who left the bank in 2007 and was not implicated in the 
indictment, said
he knew nothing about the activities at the heart of the indictment. He 
said he
had lost $22 million in stock when the bank failed.  

Ms.
Yates, the United States attorney, said the investigation into Integrity
 was
continuing.  




Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



paul.finkel...@albanylaw.

RE: Factual Clarification re CLS

[Esenberg, Richard]

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" :

> 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 

RE: Faith Base Banking

[Volokh, Eugene]

  I’m not sure I even quite understand the question – what exactly 
constitutes a “religious bank” that would be prohibited, while “secular banks” 
would be permitted?

  Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Monday, May 10, 2010 11:07 AM
To: Law & Religion issues for Law Academics
Subject: Faith Base Banking

Are there First Amendment issues here? Or more precisely, should there be bank 
regulations -- or civil rights regulations -- that preclude religious banks? Or 
is this just run-of-the-mill corruption (assuming the indictments lead to 
conviction, and the banks are not innocent).

==
The New York Times
May 7, 2010
2 at Faith-Based Bank Are Indicted Over Bribes
By ROBBIE 
BROWN

ATLANTA — When government regulators here shut down Integrity Bank at the 
height of the 
recession,
 in August of 2008, the bank was seen as just another failed lender that had 
overvalued the real estate market and collapsed.

But a federal indictment unsealed on Friday accused two former vice presidents 
at the bank of hastening its downfall by selling fraudulent loans to a hotel 
developer in exchange for bribes.

The two executives, Douglas Ballard and Joseph Todd Foster, were charged with 
conspiracy, insider trading and bank fraud, according to the indictment. Mr. 
Ballard was also charged with bribery. The developer, Guy Mitchell, who 
received $80 million in loans, was charged with conspiracy and bribery.



Founded on Christian principles in 2000 in an Atlanta suburb, Integrity used 
the motto “In God We Trust.” The bank gave customers free Bibles, and employees 
prayed together at meetings. Onetime investors included a Georgia state senator 
and the former CNN host Lou 
Dobbs.



But in announcing the indictment, the United States attorney Sally Quillian 
Yates said Mr. Ballard and Mr. Foster had not lived up to the bank’s name or 
mission.

“A number of banks have suffered from the plummeting real estate market, but 
this bank was robbed from the inside,” she said.

Mr. Ballard, 40, and Mr. Foster, 42, could not be reached for comment on Friday 
and will be arraigned at a later date. Mr. Mitchell, 50, pleaded not guilty at 
a federal courthouse in Atlanta.

A lawyer for Mr. Mitchell, Edward Garland, said his client had been a 
law-abiding, profitable customer for the bank. “The collapse of the economy 
caused the bank failure, not his activity,” Mr. Garland said.

Georgia leads the nation in bank failures, with 38 banks having closed since 
2007, according to the Federal Deposit Insurance 
Corporation.
 The state’s woes have generally been blamed on underregulation and 
overinvestment in real estate. But the Integrity case is a different matter.

“These indictments are very unusual,” said A. James Elliott, associate dean of 
Emory 
University
 School of Law, an expert in banking law.

From 2004 to 2006, Mr. Mitchell, who lives in Coral Gables, Fla., and has 
developed hotels, shopping centers and other commercial real estate, received 
the $80 million in loans from Integrity, the indictment says. His holdings 
include the upscale Casa Madrona Hotel and Spa in Sausalito, Calif., and the 
Royal Palm Hotel near Miami.

The indictment charges that he obtained much of the money under false pretenses 
and deposited nearly $20 million in a personal checking account, with which he 
bought luxury items, including a $1.5 million private island in the Bahamas.

The indictment charges that Mr. Mitchell made few, if any, payments on the 
loans. Instead, it says, he took additional loans, and his debt ballooned. In 
return for lenience, Mr. Mitchell paid Mr. Ballard more than $230,000 in 
bribes, the indictment says. It also accuses the two bank executives of 
engaging in insider trading by selling Integrity stock.

“After passing out $80 million to the developer like it was Monopoly money, 
both officers dumped their Integrity stock before the failed loans came to 
light,” Ms. Yates said.

But Mr. Garland, the defense lawyer, said Mr. Mitchell was in compliance with 
banking regulations and merely used a central bank account for both personal 
and business expenses, adding, “We expect to show that he is completely 
innocent.”

Integrity reported assets of $1.1 billion when it was sold to a unit of the 
Regions Financial 
Corporation

Re: Faith Base Banking

[hamilton02]

Sounds like religious insurance.  They typically argue they should not have to 
abide by regulations and they discriminate on the basis of religion in hiring 
and in choosing customers

As I remember there is a religious exemption for religious insurers in the 
health care law.

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Mon, 10 May 2010 11:13:12 
To: 'Law & Religion issues for Law Academics'
Subject: RE: Faith Base Banking

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RE: Factual Clarification re CLS

[Rick Duncan]

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)



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RE: Factual Clarification re CLS

[Scarberry, Mark]

The all comers policy may not be viewpoint discriminatory, but it is in,
at least in potential, viewpoint annihilatory. That makes it nonsensical
for a forum explicitly designed to encourage a diversity of viewpoints.

 

Mark Scarberry

Pepperdine

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Monday, May 10, 2010 11:47 AM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

 

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)

 

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RE: Factual Clarification re CLS

[Ira (Chip) Lupu]

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 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   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. 
> Anyone can subscribe to the list and read messages that are post

RE: Factual Clarification re CLS

[Marc Stern]

It is not true that it never happens. I think it was scientology in the
late 70's or early 80's  Scientology tried to take over an anti-cult
group,invokng the Unruh Act. The California courts saw through the
effort.
Marc

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Monday, May 10, 2010 4:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

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
)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics

>
>   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, 

RE: Factual Clarification re CLS

[Ira (Chip) Lupu]

Did this attempted takeover of the anti-cult group by Scientologists happen in 
a law school, or other educational institution, where the cooperation 
incentives are maximized?  If you are going to offer real examples, more 
details would be helpful.  

In the world of truly private associations (like religious congregations, or 
the Boy Scouts)), the right to exclude is of course a trump against any 
state-imposed policy of mandatory inclusion of "all comers."  But that doesn't 
mean that a state university must recognize that right to exclude when it sets 
a policy about access to the forum -- in that context, nondiscrimination among 
groups is the controlling norm.  And "all-comers" is nondiscriminatory. 

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 16:49:55 -0400
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" 
>)
>Subject: RE: Factual Clarification re CLS  
>To: "Law & Religion issues for Law Academics" 
>
>It is not true that it never happens. I think it was scientology in the
>late 70's or early 80's  Scientology tried to take over an anti-cult
>group,invokng the Unruh Act. The California courts saw through the
>effort.
>Marc
>
>-Original Message-
>From: religionlaw-boun...@lists.ucla.edu
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
>Sent: Monday, May 10, 2010 4:41 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Factual Clarification re CLS
>
>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
>)
>>Subject: RE: Factual Clarification re CLS  
>>To: Law & Religion issues for Law Academics
>
>>
>>   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  

Re: Factual Clarification re CLS

[Hamilton02]

 
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 
)
>Subject: RE: Factual  Clarification re CLS  
>To: Law & Religion issues for Law  Academics 
>
>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 

Re: Factual Clarification re CLS

[ArtSpitzer]

Apparently the Scientologists tried twice; two reported cases seem to fit 
Marc's description:

Hart v. Cult Awareness Network, 13 Cal.App.4th 777, 16 Cal.Rptr.2d 705 
(Cal.App. 2 Dist. 1993)

Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994)

The cases didn't arise on a college campus.
 
Art Spitzer


In a message dated 5/10/10 4:50:53 PM, mst...@ajcongress.org writes:


> It is not true that it never happens. I think it was scientology in the
> late 70's or early 80's  Scientology tried to take over an anti-cult
> group,invokng the Unruh Act. The California courts saw through the
> effort.
> Marc
> 
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Salazar

[Ira (Chip) Lupu]

Marci wrote: "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."  

Such an agreement did not occur in Salazar. (Of the six Justices who addressed 
the merits, three would have affirmed.) Justices Scalia and Thomas concurred in 
the judgment, on the ground that Mr. Buono lacked standing to seek what Scalia 
called an expansion of the injunction, to cover a display of the cross on land 
that the U.S. sought to transfer to a private party.  Scalia may well have felt 
somewhat trapped by his McCreary County dissent, in which he strongly 
emphasized that the Ten Commandments were a text shared by western monotheists 
-- Jews, Christians, and Muslims.  I also think Scalia may have been 
(appropriately)  chagrined by his exchange in the oral argument in Salazar, 
when the ACLU counsel reminded him that Jewish cemeteries will not display 
crosses on gravestones.  So we don't really know what Justice Scalia would say 
on the merits of government sponsorship of a cross as a war memorial (and 
perhaps he will forever argue that no one has Article III standing to !
 ch!
allenge such a display, so he never has to reach those merits.) 

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 17:07:15 EDT
>From: religionlaw-boun...@lists.ucla.edu (on behalf of hamilto...@aol.com)
>Subject: Re: Factual Clarification re CLS  
>To: religionlaw@lists.ucla.edu
>
>   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

Re: Factual Clarification re CLS

[ArtSpitzer]

Ira Lupu writes:

> 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.
> 
> 
But isn't that purpose fully served by requiring that campus groups allow 
all comers to attend meetings and participate in discussions?   Does voting 
membership or eligibility for leadership positions further serve that 
purpose?

And campus groups are not only discussion groups.   Quite often they are 
action groups as well.   For example, a CLS group and an Outlaw group at GWU 
may both want to present testimony at a DC Council hearing on a same-sex 
marriage bill.

Art Spitzer
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RE: Factual Clarification re CLS

[Rick Duncan]

Perhaps democrats will not attempt to take control of the Young Republicans.

But I think there is a good chance that socially liberal Christians may take 
control of a conservative Christian group that can't protect its doctrinal 
beliefs through its membership policy.

By the way, it is clear that the CLS allows all comers to attend its meetings. 
This case is strictly about who can control an organization's beliefs and 
speech, not about who may attend meetings.

I have read the oral argument transcript several times. And it is clear to me 
that Breyer believes an all comers membership policy is silly and completely 
inconsistent with a marketplace of ideas in which many groups with different 
beliefs debate and express different ideas from very different perspectives.

Rick Duncan

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



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RE: Factual Clarification re CLS

[Esenberg, Richard]

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

Re: Faith Base Banking

[Vance R. Koven]

I don't see any particular connection to religion at all here. Everybody
seems to be saying they were in compliance with banking regulations, the
securities laws and anything else they've been charged with violating. If
there is going to be a claim that being a "religious" bank means they don't
have to abide by whatever lending criteria the law establishes (and if they
were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's
excuse was), it would strike me as both a "last refuge of a scoundrel" issue
and a possible estoppel issue if they didn't make any exemption claims when
obtaining their banking licenses (I don't know what regulations would apply
to the borrower--there are already cases that hold a bank loan is not a
securities transaction to which Rule 10b-5 would apply).

There are, however, religious banks, in the sense of banks that apply
religious law to their products, chiefly Islamic banks that structure
products around the interest prohibition. Of course, Western banks also deal
in such products for clients to whom the religious prohibitions matter.
However, the NYT article doesn't suggest that Integrity was claiming a
Christian loan is one that doesn't need to be repaid.

Vance

On Mon, May 10, 2010 at 2:30 PM,  wrote:

> Sounds like religious insurance.  They typically argue they should not have
> to abide by regulations and they discriminate on the basis of religion in
> hiring and in choosing customers
>
> As I remember there is a religious exemption for religious insurers in the
> health care law.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Mon, 10 May 2010 11:13:12
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Faith Base Banking
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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> ___
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-- 
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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RE: Factual Clarification re CLS

[Brownstein, Alan]

I understand that the facts of CLS v. Martinez case are limited to voting 
membership and eligibility for leadership positions. But if the foundation of 
the CLS claim is that it is being required to sacrifice its freedom of 
association rights to obtain access to a designated public forum, why wouldn't 
those associational freedom rights also extend to deciding to who may attend 
meetings and participate in discussions?

Just asking.

Alan Brownstein
UC Davis School of Law

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com
Sent: Monday, May 10, 2010 2:42 PM
To: icl...@law.gwu.edu; religionlaw@lists.ucla.edu
Subject: Re: Factual Clarification re CLS

Ira Lupu writes:


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.

But isn't that purpose fully served by requiring that campus groups allow all 
comers to attend meetings and participate in discussions?  Does voting 
membership or eligibility for leadership positions further serve that purpose?

And campus groups are not only discussion groups.  Quite often they are action 
groups as well.  For example, a CLS group and an Outlaw group at GWU may both 
want to present testimony at a DC Council hearing on a same-sex marriage bill.

Art Spitzer

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Re: Factual Clarification re CLS

[ArtSpitzer]

In a message dated 5/10/10 6:01:48 PM, aebrownst...@ucdavis.edu writes:

> why wouldn’t those associational freedom rights also extend to deciding 
> to who may attend meetings and participate in discussions?
> 
I think the associational claim might well extend to those activities.   
But mightn't the state educational institution be found to have an 
anti-discrimination interest that is compelling as applied to those activities, 
but 
that is not compelling as applied to voting and leadership?

Art Spitzer
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RE: Factual Clarification re CLS

[Ira (Chip) Lupu]

I was at the oral argument in CLS v. Hastings.  I think Marci's interpretation 
of Breyer's questions and comments is quite right.  We'll know soon enough, but 
(from his questions, tone, and facial expression -- the latter two don't come 
through in a transcript -- at argument) I will be very surprised if Breyer 
joins an opinion that says an "all-comers" policy in this context is 
unconstitutional.

If social liberals join a conservative Christian group, and succeed in changing 
the message, conservative Christians can leave and form a new, conservative 
Christian group.  Do list members think the socially liberal Christians will 
just keep hunting down and infiltrating such groups?  This seems  fantastical 
(and slightly paranoid) to me.  I'm still waiting for real-life, on-campus 
examples of such behavior.

To Art Spitzer's question -- I don't know how you can say the purpose of an 
"all-comers" policy is "fully served" by allowing dissenters to attend 
meetings, but not vote or hold office.  This is a matter of degree -- the more 
that dissenters can exercise political influence in the group, the more the 
interchange within the group may be open, dynamic, and non-dogmatic.  Those may 
not be purposes that religious congregations may prefer, but the law school can 
have its own, independent purposes for insisting on access to full membership 
for all comers.  (Whether anyone at Hastings LS really thought all of this 
through is another question, but CLS did stipulate that "all comers" is among 
the relevant policies.)

  
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 14:45:10 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   Perhaps democrats will not attempt to take control   
>   of the Young Republicans.
>
>   But I think there is a good chance that socially 
>   liberal Christians may take control of a 
>   conservative Christian group that can't protect its  
>   doctrinal beliefs through its membership policy. 
>
>   By the way, it is clear that the CLS allows all  
>   comers to attend its meetings. This case is strictly 
>   about who can control an organization's beliefs and  
>   speech, not about who may attend meetings.   
>
>   I have read the oral argument transcript several 
>   times. And it is clear to me that Breyer believes an 
>   all comers membership policy is silly and completely 
>   inconsistent with a marketplace of ideas in which
>   many groups with different beliefs debate and
>   express different ideas from very different  
>   perspectives.
>
>   Rick Duncan  
>
>   Rick Duncan  
>   Welpton Professor of Law 
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902   
>
>___
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>To subscribe, unsubscribe, change options, or get password, see 
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>
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> 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.
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RE: Factual Clarification re CLS

[Scarberry, Mark]

Alan's question is (as always) a fair one. 

 

I'd say that the government's (Hastings Law School's) interest in having
the message promoted by the groups in its forum available to all
students is quite consistent with allowing those groups to have their
own points of view, free from being taken over by a hostile majority.
The claim that a group should be allowed to close its meetings to
non-adherents is thus at least "one step beyond"* the claim that it
should be able to have standards for those who set its agenda and speak
its message. In other words, because the explicit purpose of the forum
is to promote a diversity of viewpoint among groups for the benefit of
the entire student body, requiring groups to allow any student to hear
the messages put forward by the group helps to advance the purpose of
the forum. I suppose this would be similar to saying that the student
group in Rosenberger would have to allow any student to have a copy of
its magazine, but would not have to allow any student to become an
editor of the magazine. 

 

To the extent that participation in discussion by students who are
non-adherents is consistent with the putting forward of the group's
point of view, I think it also would be  "one step beyond" for a group
to claim a right to exclude non-adherents from active participation in
discussion, where discussion is part of the activity. But this would be
subject, just as in our classes, to the right of the discussion leader
to guide the discussion and keep the discussion somewhat on point.
Leaders would need to be able to prevent hijacking of Bible studies or
other discussions by those intent not on participating in a cooperative
spirit but rather on disrupting the activity. 

 

Whether an argument could be made for these "one step beyond" claims is
not something I've considered. But they are distinguishable from the
claim made by the Hastings chapter of CLS.

 

At least that's my initial reaction to Alan's good question.

 

Mark Scarberry

Pepperdine

 

*"One Step Beyond" was a TV show that ran about the same time that the
original Twilight Zone series was on.

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Monday, May 10, 2010 3:01 PM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

 

I understand that the facts of CLS v. Martinez case are limited to
voting membership and eligibility for leadership positions. But if the
foundation of the CLS claim is that it is being required to sacrifice
its freedom of association rights to obtain access to a designated
public forum, why wouldn't those associational freedom rights also
extend to deciding to who may attend meetings and participate in
discussions? 

 

Just asking.

 

Alan Brownstein

UC Davis School of Law

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
artspit...@aol.com
Sent: Monday, May 10, 2010 2:42 PM
To: icl...@law.gwu.edu; religionlaw@lists.ucla.edu
Subject: Re: Factual Clarification re CLS

 

Ira Lupu writes:



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.


But isn't that purpose fully served by requiring that campus groups
allow all comers to attend meetings and participate in discussions?
Does voting membership or eligibility for leadership positions further
serve that purpose?

And campus groups are not only discussion groups.  Quite often they are
action groups as well.  For example, a CLS group and an Outlaw group at
GWU may both want to present testimony at a DC Council hearing on a
same-sex marriage bill.

Art Spitzer

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RE: Factual Clarification re CLS

[Rick Duncan]

Alan asks a great question:

"I understand that the 
facts of CLS v. Martinez case are limited
to voting membership and eligibility for leadership positions. But if 
the
foundation of the CLS claim is that it is being required to sacrifice 
its
freedom of association rights to obtain access to a designated public 
forum,
why wouldn’t those associational freedom rights also extend to deciding 
to
who may attend meetings and participate in discussions?  

   

Just asking."
I think the essence of expressive association is that an expressive group 
speaks through its leaders, and leaders are elected by voting members.

Hastings has created a limited public forum for the express purpose of creating 
a diverse marketplace of ideas. Even if the all comers policy is viewpoint 
neutral, Hastings reason for excluding a student group from its forum must be 
reasonable in light of the purpose of the forum. This policy is not reasonable 
in light of the purpose of the forum; it is destructive of a marketplace of 
ideas, of a forum in which groups with diverse beliefs come together to debate 
and express very different views about the good life and what is true, what is 
good, and what is beautiful.

If all groups must allow everyone and anyone to participate in the formation of 
its beliefs, there will be no diversity of ideas in the marketplace. Just a lot 
of watered down, least common denominators of expression.

Rick

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)





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RE: Factual Clarification re CLS

[Ira (Chip) Lupu]

Rick writes "If all groups must allow everyone and anyone to participate in the 
formation of its beliefs, there will be no diversity of ideas in the 
marketplace. Just a lot of watered down, least common denominators of 
expression."  

But this is more fantasy and fear.  Students do and will self-select.  The 
moderate feminists group will not take over the radical feminists group.  The 
Republicans and Democrats will not co-opt each other and form the single 
political group of the "mushy middles." Groups can form and reform at will 
(most schools require only a very small number of students to form a new, 
recognized group.)  
What some on the list seem concerned about is a group's right to maintain a 
constant and religiously orthodox message.  Congregations have every right to 
insist on that, and to chose members, leaders, and even attendees at worship or 
lectures accordingly.  But state schools do not have to support a structure 
that protects religiously orthodox messages.  The forum can have many purposes, 
including not only diversity (which Hastings and others will inevitably have), 
but the opportunity for students to join a group and challenge its orthodoxy 
(however infrequently that happens, because of self-selection, exit options, 
and mutual forbearance).  It's that "right to join and challenge" purpose that 
the all-comers policy may advance.  And that purpose -- quite legitimate in 
this context -- is in perfect tension with the "right to exclude" that CLS 
advances in this case.

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 15:28:12 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   Alan asks a great question:  
>
>   "I understand that the facts of CLS v. Martinez case 
>   are limited to voting membership and eligibility for 
>   leadership positions. But if the foundation of the   
>   CLS claim is that it is being required to sacrifice  
>   its freedom of association rights to obtain access   
>   to a designated public forum, why wouldn’t those   
>   associational freedom rights also extend to deciding 
>   to who may attend meetings and participate in
>   discussions? 
>
>
>
>   Just asking."
>
>   I think the essence of expressive association is 
>   that an expressive group speaks through its leaders, 
>   and leaders are elected by voting members.   
>
>   Hastings has created a limited public forum for the  
>   express purpose of creating a diverse marketplace of 
>   ideas. Even if the all comers policy is viewpoint
>   neutral, Hastings reason for excluding a student 
>   group from its forum must be reasonable in light of  
>   the purpose of the forum. This policy is not 
>   reasonable in light of the purpose of the forum; it  
>   is destructive of a marketplace of ideas, of a forum 
>   in which groups with diverse beliefs come together   
>   to debate and express very different views about the 
>   good life and what is true, what is good, and what   
>   is beautiful.
>
>   If all groups must allow everyone and anyone to  
>   participate in the formation of its beliefs, there   
>   will be no diversity of ideas in the marketplace.
>   Just a lot of watered down, least common 
>   denominators of expression.  
>
>   Rick 
>
>   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 Reli

Re: Faith Base Banking

[verizon]

I think the bank was claiming something like Hebrew National's "we answer to a 
higher authority."
That is, they would be more friendly, transparent, and helpful than other 
banks. Maybe they would keep the borrower from getting a loan that could not be 
repaid.

Alan

Law Office of Alan Leigh Armstrong
18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
714 375 1147 faz 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984





On May 10, 2010, at 2:51 PM, Vance R. Koven wrote:

> I don't see any particular connection to religion at all here. Everybody 
> seems to be saying they were in compliance with banking regulations, the 
> securities laws and anything else they've been charged with violating. If 
> there is going to be a claim that being a "religious" bank means they don't 
> have to abide by whatever lending criteria the law establishes (and if they 
> were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's 
> excuse was), it would strike me as both a "last refuge of a scoundrel" issue 
> and a possible estoppel issue if they didn't make any exemption claims when 
> obtaining their banking licenses (I don't know what regulations would apply 
> to the borrower--there are already cases that hold a bank loan is not a 
> securities transaction to which Rule 10b-5 would apply).
> 
> There are, however, religious banks, in the sense of banks that apply 
> religious law to their products, chiefly Islamic banks that structure 
> products around the interest prohibition. Of course, Western banks also deal 
> in such products for clients to whom the religious prohibitions matter. 
> However, the NYT article doesn't suggest that Integrity was claiming a 
> Christian loan is one that doesn't need to be repaid.
> 
> Vance
> 
> On Mon, May 10, 2010 at 2:30 PM,  wrote:
> Sounds like religious insurance.  They typically argue they should not have 
> to abide by regulations and they discriminate on the basis of religion in 
> hiring and in choosing customers
> 
> As I remember there is a religious exemption for religious insurers in the 
> health care law.
> 
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Mon, 10 May 2010 11:13:12
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Faith Base Banking
> 
> ___
> 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; 
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> forward the messages to others.
> 
> ___
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> forward the messages to others.
> 
> 
> 
> -- 
> Vance R. Koven
> Boston, MA USA
> vrko...@world.std.com
> ___
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Re: Factual Clarification re CLS

[Lisa A. Runquist]

On 5/10/2010 3:14 PM, Ira (Chip) Lupu wrote:

If social liberals join a conservative Christian group, and succeed in changing 
the message, conservative Christians can leave and form a new, conservative 
Christian group.
You do recognize, don't you, that the Christian Legal Society is a 
national religious organization of attorneys and law students?  I do 
think that CLS has a right to maintain control over its membership and 
its name.  To suggest that it is appropriate to allow a student chapter 
to be taken over by people who have different beliefs, and then require 
the original group to form a new entity (which would also then have to 
have a new name) seems at least as fantastical as anything else you 
suggest.  If someone wants a group for these new beliefs, that seems to 
be more appropriate to require them to start the new group.

To Art Spitzer's question -- I don't know how you can say the purpose of an "all-comers" 
policy is "fully served" by allowing dissenters to attend meetings, but not vote or hold 
office.  This is a matter of degree -- the more that dissenters can exercise political influence in 
the group, the more the interchange within the group may be open, dynamic, and non-dogmatic.
Political influence?  Firmly held religious beliefs are generally not 
established by who gets the most votes.  And why do you want to insist 
that any student group be "non-dogmatic?"  Is this another term for 
"politically correct?"

Those may not be purposes that religious congregations may prefer, but the law 
school can have its own, independent purposes for insisting on access to full 
membership for all comers.
And what might these be?  It seems that this policy will ultimately 
backfire.  What is to be gained by requiring a Latino student group to 
change its documents to allow whites to become voting members?  Why 
should the gay, lesbian, transgender group have to allow individuals who 
do not believe in their lifestyle to be members of their organization?

   (Whether anyone at Hastings LS really thought all of this through is another question, 
but CLS did stipulate that "all comers" is among the relevant policies.)


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 14:45:10 -0700 (PDT)
From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick 
Duncan)
Subject: RE: Factual Clarification re CLS
To: Law&  Religion issues for Law Academics

   Perhaps democrats will not attempt to take control
   of the Young Republicans.

   But I think there is a good chance that socially
   liberal Christians may take control of a
   conservative Christian group that can't protect its
   doctrinal beliefs through its membership policy.

   By the way, it is clear that the CLS allows all
   comers to attend its meetings. This case is strictly
   about who can control an organization's beliefs and
   speech, not about who may attend meetings.

   I have read the oral argument transcript several
   times. And it is clear to me that Breyer believes an
   all comers membership policy is silly and completely
   inconsistent with a marketplace of ideas in which
   many groups with different beliefs debate and
   express different ideas from very different
   perspectives.

   Rick Duncan

   Rick Duncan
   Welpton Professor of Law
   University of Nebraska College of Law
   Lincoln, NE 68583-0902

__




--
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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Re: Factual Clarification re CLS

[Lisa A. Runquist]

While I agree with Rick's analysis, I would also point out that if the 
organization wants a closed meeting, it does not have to occur on the 
university campus.  It can find a local church, a dorm room, or some 
other similar location.


Lisa

On 5/10/2010 3:28 PM, Rick Duncan wrote:

Alan asks a great question:

"I understand that the facts of CLS v. Martinez case are limited to 
voting membership and eligibility for leadership positions. But if the 
foundation of the CLS claim is that it is being required to sacrifice 
its freedom of association rights to obtain access to a designated 
public forum, why wouldn’t those associational freedom rights also 
extend to deciding to who may attend meetings and participate in 
discussions?


Just asking."


I think the essence of expressive association is that an expressive 
group speaks through its leaders, and leaders are elected by voting 
members.


Hastings has created a limited public forum for the express purpose of 
creating a diverse marketplace of ideas. Even if the all comers policy 
is viewpoint neutral, Hastings reason for excluding a student group 
from its forum must be reasonable in light of the purpose of the 
forum. This policy is not reasonable in light of the purpose of the 
forum; it is destructive of a marketplace of ideas, of a forum in 
which groups with diverse beliefs come together to debate and express 
very different views about the good life and what is true, what is 
good, and what is beautiful.


If all groups must allow everyone and anyone to participate in the 
formation of its beliefs, there will be no diversity of ideas in the 
marketplace. Just a lot of watered down, least common denominators of 
expression.


Rick

Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902



--
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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RE: Factual Clarification re CLS

[Rick Duncan]

Chip writes:

"But this is more fantasy and fear.  Students do and will self-select.  
The moderate feminists group will not take over the radical feminists 
group.  The Republicans and Democrats will not co-opt each other and 
form the single political group of the "mushy middles." Groups can form 
and reform at will (most schools require only a very small number of 
students to form a new, recognized group.)  
What some on the list 
seem concerned about is a group's right to maintain a constant and 
religiously orthodox message.  Congregations have every right to insist 
on that, and to chose members, leaders, and even attendees at worship or
 lectures accordingly.  But state schools do not have to support a 
structure that protects religiously orthodox messages.  The forum can 
have many purposes, including not only diversity (which Hastings and 
others will inevitably have), but the opportunity for students to join a
 group and challenge its orthodoxy (however infrequently that happens, 
because of self-selection, exit options, and mutual forbearance).  It's 
that "right to join and challenge" purpose that the all-comers policy 
may advance.  And that purpose -- quite legitimate in this context -- is
 in perfect tension with the "right to exclude" that CLS advances in 
this case."

A couple of points.

1. Chip tries to have it both ways. First, he says the all comers policy won't 
make any difference at all, because the groups will self-select and no one will 
try to capture the CLS. But then, he says that students will indeed take 
advantage of the all comers policy in order to challenge the orthodoxy of 
groups like CLS.

Well, if his first guess about the future is right, the policy is literally 
denying the right of expressive association for no legitimate reason (since the 
policy won't change anything anyway). And if his second guess is right (and 
there will be at least some attempts at takeovers), then this challenging of 
orthodox doctrines strikes at the heart of the CLS and its right of expressive 
association.

2. No one is arguing for a right "that protects religiously orthodox messages." 
The right of expressive association protects all expressive groups--whether 
religious or secular--to organize a group around a set of beliefs. 

3. This case involves a very severe example of unconstitutional conditions. CLS 
has two constitutional rights; the right to participate in a limited public 
forum; and the right of expressive association. Hastings tells CLS it can have 
one right, but not both. If it wants to participate in the public forum, it 
must waive its right to expressive association and include members who don't 
share its views. 

4. Suppose the City of San Francisco announced that the only groups that could 
reserve a space in a public forum (say, a public library that made meeting 
rooms available to community groups) are groups that allow all comers to be 
members and leaders. Is this policy constitutional under forum law and the 
right of expressive association?

Rick



Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902





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Justice Breyer in Hastings case

[Douglas Laycock]

I don't think the transcript will support Marci's take on Justice Breyer.  He 
was clearly making fun of somebody.  It appears from the beginning that 
Hastings was the target. But if if the fun-making is ambiguous, it is clarified 
by the end of the exchange, when he says to Michael, "I tend to sympathize with 
your view that it's so hard to believe that they really hold it."  The 
antecedent of "it" is "this policy."  

Don't take my word or Marci's for it; read the transcipt for yourself.  The 
exchange starts at the bottom of page 61 and runs to the top of 63.  Here's the 
link.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1371.pdf

Breyer's problem was not that he thought the all-comers policy made any sense, 
but that it was so unclear what the policy was that maybe they should DIG the 
case.

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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Re: Justice Breyer in Hastings case

[hamilton02]

For what it is worth, Doug, I will stick with my reading of the transcript.  It 
is not as though either of us will be writing the opinion(s)
In any event, what is more interesting to me is the attempt by conservative 
Christians to demand university funds and recognition when they can meet 
without it.  Where is the stopping point here?   I was quite serious when I 
said that the reasoning propounded by CLS is one short step away from demanding 
the university pay for all worship services.
And then schools can be required to segregate students in classes or campus 
housing so there is no cross-pollination between believers.  And separate 
cafeterias.  Where does this push to turn the public sphere into the service of 
the private sphere end?  I am sincerely interested in the limiting principle if 
Doug or others can articulate it

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Douglas Laycock 
Date: Mon, 10 May 2010 20:53:23 
To: 
Subject: Justice Breyer in Hastings case

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Re: Justice Breyer in Hastings case

[Rick Duncan]

Marci, the limiting principle is the public forum doctrine.

CLS is not asking for public funding in a vacuum. They merely want access to 
Hastings' limited public forum for student groups, access that respects their 
right of expressive association.

Hastings is searching for a loophole to overrule the results in Widmar, 
Mergens, Lambs Chapel, and Good News. If all the govt has to do to keep 
churches, religious organizations, and other unpopular groups from having 
access to a public forum is adopt an "all comers" policy that excludes groups 
which exclude from membership those who reject their beliefs and expressive 
ideas, then Widmar, Lambs Chapel, and Good News are meaningless.

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)

--- On Mon, 5/10/10, hamilto...@aol.com  wrote:

From: hamilto...@aol.com 
Subject: Re: Justice Breyer in Hastings case
To: "Law & Religion issues for Law Academics" 
Date: Monday, May 10, 2010, 7:31 PM

For what it is worth, Doug, I will stick with my reading of the transcript.  It 
is not as though either of us will be writing the opinion(s)
In any event, what is more interesting to me is the attempt by conservative 
Christians to demand university funds and recognition when they can meet 
without it.  Where is the stopping point here?   I was quite serious when I 
said that the reasoning propounded by CLS is one short step away from demanding 
the university pay for all worship services.
And then schools can be required to segregate students in classes or campus 
housing so there is no cross-pollination between believers.  And separate 
cafeterias.  Where does this push to turn the public sphere into the service of 
the private sphere end?  I am sincerely interested in the limiting principle if 
Doug or others can articulate it

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Douglas Laycock 
Date: Mon, 10 May 2010 20:53:23 
To: 
Subject: Justice Breyer in Hastings case

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A real-life on-campus example

[Eric Rassbach]

Chip -

One "real-life, on-campus" example is cited at page 33 n.5 of Petitioner's 
brief -- a Mormon student was not allowed to lead Bible study at the Washburn 
University CLS chapter.  His reaction was to petition (successfully) to get the 
CLS chapter derecognized. It appears from PACER that CLS got re-recognized only 
after filing suit and settling the case.

In a religiously diverse, politically polarized world (witness this list), only 
Polyanna believes that these situations will "just work themselves out" absent 
the shadow of the law. Maybe folks think that an outcome allowing CLS to 
belief-test leaders and voting members is immoral or otherwise wrong, but they 
shouldn't pretend the conflict doesn't actually exist.

Eric





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu]
Sent: Monday, May 10, 2010 6:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

I was at the oral argument in CLS v. Hastings.  I think Marci's interpretation 
of Breyer's questions and comments is quite right.  We'll know soon enough, but 
(from his questions, tone, and facial expression -- the latter two don't come 
through in a transcript -- at argument) I will be very surprised if Breyer 
joins an opinion that says an "all-comers" policy in this context is 
unconstitutional.

If social liberals join a conservative Christian group, and succeed in changing 
the message, conservative Christians can leave and form a new, conservative 
Christian group.  Do list members think the socially liberal Christians will 
just keep hunting down and infiltrating such groups?  This seems  fantastical 
(and slightly paranoid) to me.  I'm still waiting for real-life, on-campus 
examples of such behavior.

To Art Spitzer's question -- I don't know how you can say the purpose of an 
"all-comers" policy is "fully served" by allowing dissenters to attend 
meetings, but not vote or hold office.  This is a matter of degree -- the more 
that dissenters can exercise political influence in the group, the more the 
interchange within the group may be open, dynamic, and non-dogmatic.  Those may 
not be purposes that religious congregations may prefer, but the law school can 
have its own, independent purposes for insisting on access to full membership 
for all comers.  (Whether anyone at Hastings LS really thought all of this 
through is another question, but CLS did stipulate that "all comers" is among 
the relevant policies.)


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 14:45:10 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS
>To: Law & Religion issues for Law Academics 
>
>   Perhaps democrats will not attempt to take control
>   of the Young Republicans.
>
>   But I think there is a good chance that socially
>   liberal Christians may take control of a
>   conservative Christian group that can't protect its
>   doctrinal beliefs through its membership policy.
>
>   By the way, it is clear that the CLS allows all
>   comers to attend its meetings. This case is strictly
>   about who can control an organization's beliefs and
>   speech, not about who may attend meetings.
>
>   I have read the oral argument transcript several
>   times. And it is clear to me that Breyer believes an
>   all comers membership policy is silly and completely
>   inconsistent with a marketplace of ideas in which
>   many groups with different beliefs debate and
>   express different ideas from very different
>   perspectives.
>
>   Rick Duncan
>
>   Rick Duncan
>   Welpton Professor of Law
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902
>
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>the messages to others.
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Re: A real-life on-campus example

[Steven Jamar]

CLS is not being stopped from association and restricting membership, etc.
CLS can belief-test leaders.  That is not the issue.  The government is not
stopping CLS from meeting, from associating, from adverstising, from doing
anything at all except using government property when CLS fails to comply
with a neutral, secular law/rule of general applicability.

I disagree with the Rosenberger reasoning and result, but it would seem that
that equality principle -- treating CLS just like all the other
organizations (must comply with the neutral, generally applicable rule)
could have some traction here.

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.

Will there be difficult cases?  Surely.

What would be the result if the university made an exception for religious
organizations -- then it is not treating the religious organization
equally.  It is getting special treatment.  And that seems ok.  But what is
being sought here is not a policy based accommodation, but a
constitution-based one.

Steve

On Mon, May 10, 2010 at 10:52 PM, Eric Rassbach wrote:

> Chip -
>
> One "real-life, on-campus" example is cited at page 33 n.5 of Petitioner's
> brief -- a Mormon student was not allowed to lead Bible study at the
> Washburn University CLS chapter.  His reaction was to petition
> (successfully) to get the CLS chapter derecognized. It appears from PACER
> that CLS got re-recognized only after filing suit and settling the case.
>
> In a religiously diverse, politically polarized world (witness this list),
> only Polyanna believes that these situations will "just work themselves out"
> absent the shadow of the law. Maybe folks think that an outcome allowing CLS
> to belief-test leaders and voting members is immoral or otherwise wrong, but
> they shouldn't pretend the conflict doesn't actually exist.
>
> Eric
>
>
> --
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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RE: Factual Clarification re CLS

[Brownstein, Alan]

Mark's helpful post provides a thoughtful response to my earlier question -- 
but in doing so, it raises another question about the potential scope of the 
Court holding in the CLS case.

In my view, the forum that Hastings created was essentially a designated public 
forum, not a designated limited public forum. As such, it had to be open to 
everyone on pretty much the same terms as a traditional public forum. On that 
understanding, I think one can argue that a student group's right of 
associational freedom extends not only to the power to determine who may serve 
as group leaders or be counted as voting members. It would also extend to 
determining who may participate in group events and discussions as well.

Mark's response suggests that the forum Hastings created was more of a 
designated limited public forum than a designated public forum. It has 
parameters designed to serve a particular purpose --  "to promote a diversity 
of viewpoint among groups for the benefit of the entire student body." Assuming 
that this is a legitimate parameter to impose on a limited public forum, 
Hastings may deny access to the forum to groups that do not fit within the 
forum's parameters. A group that excluded students from participating in events 
and discussions would fail to satisfy the forum's requirements and could be 
denied access to it.

What troubles me about this argument is that it depends so much on the nature 
and parameters of the forum that Hastings or some other university or law 
school chooses to create. That leads me to this question: If the parameters of 
the forum a university creates may permit the university to restrict a student 
group's associational freedom with regard to controlling access to its events 
and discussions, might one argue that different parameters -- say parameters 
designed to create internal dialogue and discussion within student groups -- 
would permit the university to restrict a student group's associational freedom 
with regard to choosing its own leaders and voting members. I understand the 
argument one might make that Hastings did not in fact create such a forum so 
the possibility that it, or another university, could do so would not preclude 
a decision favoring  CLS in this litigation. But this analysis would make a CLS 
victory of relatively limited value. A different university, creating a more 
limited forum for a different purpose, would not be bound by the decision.

For the CLS case to apply more broadly, the Court would have to conclude that a 
university cannot constitutionally create a designated limited public forum 
that denies access to groups that impose restrictions on who may serve as 
leaders or be counted as voting members. That holding raises the question of 
why a university should be prohibited from creating this kind of limited public 
forum because of the burden it imposes on associational freedom, but may create 
a limited public forum requiring all groups seeking access to it to open their 
events and discussions to everyone -- notwithstanding the burden such 
requirements impose on associational freedom.

Mark quite fairly notes that he has not yet considered this question. He also 
notes that the Court does not need to reach it to decide the CLS case. I think 
that is correct. But I also think that the more the Court's decision in the CLS 
case is based on the specific purpose for, and parameters of, the forum 
Hastings created, the more limited will be the scope and applicability of its 
holding and analysis.

Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Monday, May 10, 2010 3:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

Alan’s question is (as always) a fair one.

I’d say that the government’s (Hastings Law School’s) interest in having the 
message promoted by the groups in its forum available to all students is quite 
consistent with allowing those groups to have their own points of view, free 
from being taken over by a hostile majority. The claim that a group should be 
allowed to close its meetings to non-adherents is thus at least “one step 
beyond”* the claim that it should be able to have standards for those who set 
its agenda and speak its message. In other words, because the explicit purpose 
of the forum is to promote a diversity of viewpoint among groups for the 
benefit of the entire student body, requiring groups to allow any student to 
hear the messages put forward by the group helps to advance the purpose of the 
forum. I suppose this would be similar to saying that the student group in 
Rosenberger would have to allow any student to have a copy of its magazine, but 
would not have to allow any student to become an editor of the magazine.

To the extent that participation in discussion by students who are 
non-adherents is consistent with the putting forwa