RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
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 ed9...@wayne.edu: 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,
Re: Factual Clarification re CLS
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.
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 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)
RE: Factual Clarification re CLS
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 richard.esenb...@marquette.edu: 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
RE: Faith Base Banking
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 BROWNhttp://topics.nytimes.com/top/reference/timestopics/people/b/robbie_brown/index.html?inline=nyt-per ATLANTA — When government regulators here shut down Integrity Bank at the height of the recessionhttp://topics.nytimes.com/top/reference/timestopics/subjects/r/recession_and_depression/index.html?inline=nyt-classifier, 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 Dobbshttp://topics.nytimes.com/top/reference/timestopics/people/d/lou_dobbs/index.html?inline=nyt-per. 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 Corporationhttp://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_deposit_insurance_corp/index.html?inline=nyt-org. 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 Universityhttp://topics.nytimes.com/top/reference/timestopics/organizations/e/emory_university/index.html?inline=nyt-org 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
Re: Faith Base Banking
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 vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu 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; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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) ___ 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.
RE: Factual Clarification re CLS
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) ___ 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.
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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can
RE: Factual Clarification re CLS
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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song,
RE: Factual Clarification re CLS
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 mst...@ajcongress.org) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as
Re: Factual Clarification re CLS
I think Rick misreads Justice Breyer's comments. He was playing Michael, saying, tongue-in-cheek, that it would be fantastical that there would be this open exchange between opposing views on a law school campus. Michael was resisting agreeing that such an exchange was likely or good, and so Breyer needed to bring him back to another view of the universe to get Michael to answer the question he wanted answered. Careful reading of the transcript does not support Rick's interpretation. I think a law school has a compelling interest in having an all-comers policy, because it encourages lawyers to see all sides of every issue, regardless of their existing predispositions, which is crucial to becoming a good lawyer, no? In any event, this case is not about whether or not this group can protect its associational rights to exclude certain believers and actors. It is about whether a public university law school must provide certain meeting rooms and certain bulletin boards and money to a group that insists on exclusionary practices among its voting membership and leadership. There are no rules that forbid the group from meeting or holding the beliefs it holds. It is an attempt to move Rosenberger beyond its facts. I thought Rosenberger was wrongly decided, but cleverly argued. I think the Court needs to draw the line on this foolhardy doctrine before schools are required to have to pay for all worship services, which surely is not required by the First Amendment. Only Chief Justice Roberts and Justice Alito made any real effort to defend CLS's position, which seems to me to bode well for Martinez. But I would not have thought it possible that a majority of the Supreme Court today would agree that white crosses are the standard marker for our diverse array of soldiers, so as usual, it will be interesting to see what happens. Marci In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, icl...@law.gwu.edu writes: This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have
Re: Factual Clarification re CLS
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 ___ 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.
Re: Salazar
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 forbearance -- either the school by allowing discrimination based on
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 ___ 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.
RE: Factual Clarification re CLS
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 ___ 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.
RE: Factual Clarification re CLS
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
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, hamilto...@aol.com 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 vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu 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; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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.
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 ___ 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.
Re: Factual Clarification re CLS
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 ___ 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.
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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 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 ___ 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.
RE: Factual Clarification re CLS
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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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
Re: Faith Base Banking
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, hamilto...@aol.com 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 vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu 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; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
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 Duncannebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu 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 ___ 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.
Re: Factual Clarification re CLS
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 IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding U.S. tax penalties. This message and any attachments may be protected by the attorney/client privilege. If you believe that it has been sent to you in error, do not read, copy or distribute it. Please reply to the sender that you have received the message in error and then delete it. Thank you. NOTE: Emails are not a secure method of communication. If you do not wish to obtain future communications from me via email, please advise me immediately. ___ 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.
Justice Breyer in Hastings case
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___ 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.
Re: Justice Breyer in Hastings case
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 layco...@umich.edu Date: Mon, 10 May 2010 20:53:23 To: religionlaw@lists.ucla.edu Subject: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Justice Breyer in Hastings case
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 hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Justice Breyer in Hastings case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 layco...@umich.edu Date: Mon, 10 May 2010 20:53:23 To: religionlaw@lists.ucla.edu Subject: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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.
A real-life on-campus example
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 nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or
Re: A real-life on-campus example
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 erassb...@becketfund.orgwrote: 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. ___ 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.
