Re: Factual Clarification re CLS

2010-05-11 Thread Steven Jamar
Lisa -- how do you distinguish between allowing CLS and hate groups to  
meet?  Or does it not matter to you?


As a policy matter I think groups should be able to discriminate on  
belief and still get access -- but then what about a belief that is  
based on race?  Or sex?


We are talking about the constitutional issue here, not wise policy.

Steve

On May 11, 2010, at 12:06 PM, Lisa A. Runquist wrote:



On 5/11/2010 8:05 AM, Steven Jamar wrote:


In a society committed to non-discrimination and equality, the  
government should not be required to subsidize hate groups and  
groups that exclude other on prohibited bases.
Are you saying CLS is a hate group?  Or that a religious  
organization is prohibited from having a statement of faith and  
requiring members to agree to that statement of faith?
If the society is truly committed to non-discrimination and  
equality, then it will treat all groups equally.  That means that  
Christians should have the same rights as others.  In fact, the  
first amendment was designed to PROTECT religious organizations, not  
to be a cudgel that allows the government to PROHIBIT them.


As to any "subsidy", I have several thoughts:  1.  If the position  
of the college was that it would allow student groups to meet but  
would not give any of them any funds, that would certainly be equal  
treatment, and might be the best solution.  2.  If the position of  
the college was that all student groups that met on the college  
could not be closed, but had to be open to participation (not  
membership) by anyone interested, that is again equal treatment.   
3.  If the position of the college is that any student group could  
meet, but that it would fund only student groups that are not  
religious, is that equal treatment, or is that discrimination  
against religion?  If I were a student, and my student funds were  
going to other groups that did things I did not believe in, but my  
group was denied funding, I would probably think I was being  
discriminated against.



There are plenty of private places to meet.
I remember 35 years ago when I was a law student, seeing a notice  
for a CLS meeting.  I finally did get up enough courage to attend  
(long story).  Would I have attended if it had been someplace other  
than the law school?  I don't know.  I was working 20-30 hours a  
week as well as going to school full time so it would have made it  
much harder.
Would I have had any way of knowing about CLS if I had not seen the  
notice on the bulletin board?  Probably not.
Did becoming a member of CLS help me get thru school?  Yes.  I was  
not a part of any other group in law school; I did not belong even  
to any type of study group (I was pretty shy, had never known any  
lawyers before I went to law school, and did not know that people  
actually got together to study -- everything I did was pretty much  
on my own).  Although I am not currently a member of CLS, I was one  
for a number of years, and it did provide support that I did not get  
from any other group on campus.  I must say that it certainly was  
more helpful than the beer bashes that were regularly funded by the  
school.


Lisa

And if the society wants to change the policy, it can do so --  
unless it is constitutionalized. Do you really want this degree of  
constitutionalization of policy decisions?  Or do you want greater  
flexibility and political processes available to rectify results  
you find improper?


Accommodation would be ok -- making an exception would be  
constitutional, no?


Steve

On May 11, 2010, at 10:41 AM, Rick Duncan wrote:

In a society committed to freedom of speech, expressive groups  
should not be forced to choose between their right to access a  
public forum and their right to expressive association.


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


--
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org

Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/






--
Lisa A. Runquist
Runquist & Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
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RE: Factual Clarification re CLS

2010-05-11 Thread Volokh, Eugene
It seems to me that a public library should be perfectly entitled 
to say, in the words of Title VI, that "public funds, to which all taxpayers of 
all races [and sexes and religions and sexual orientations and ideologies] 
contribute, not be spent in any fashion which ... subsidizes ... racial [or 
sexual or religious or sexual orientation or ideologies] discrimination."  I 
think this sort of antidiscrimination extremism is bad policy; but I don't see 
why it would be unconstitutional.  The NAACP, Planned Parenthood, churches, and 
other groups would just have to meet on private property.

The same, incidentally, is true as to the charitable tax exemption, 
which doesn't apply to contributions to groups that engage in electioneering or 
a substantial amount of lobbying.  This excludes many worthy and eminently 
constitutionally protected groups from the benefit plan.  It may be an unwise 
idea.  Perhaps the government's subsidies to nonprofits' speech should also 
extend to nonprofits that electioneer or substantially lobby, because such 
speech is as valuable to society as other speech.  But it's a constitutionally 
permissible choice for the state to make.  Groups that want to elect candidates 
or promote ballot measures or lobby for legislation, however wonderful those 
groups might be, just have to do that with their own money.

Nor would I worry too much that clever drafting would exclude 
groups that ended up being included under Rosenberger et al.  A university is 
always free not to fund student groups at all, which means that it wouldn't 
fund Wide Awake, or to fund only those groups that express views that it 
chooses, or to fund only groups that talk about sports and not about other 
matters, or whatever else.  Rosenberger et al. of course don't stand for the 
proposition that any groups should be funded - only that they can't be denied 
funding because of the religiosity of their viewpoints.

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Tuesday, May 11, 2010 7:41 AM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

 How fragile is the public forum protections of cases like Widmar, Lamb's 
Chapel, and Good News? Let me re-phrase one of Eugene's hypos:

"A [public library with unused meeting rooms] is attempting to create a 
designated public forum for all [community groups] that decline to discriminate 
in officers and members based on race, religion, sex, sexual orientation, [or 
any other reason], but not those who exercise their right to expressive 
association by so discriminating, even when their expressive purpose would be 
better served by discriminating.  If you want to associate in a way that 
discriminates, do it with your own money and your own property.  Why wouldn't 
this be equally constitutional?"
If Eugene's implication is correct, all the govt has to do to exclude church's, 
religious ministries, and even secular expressive groups like Planned 
Parenthood and the NAACP from public fora is to adopt an "all comers" rule as 
part of its designated forum policy and then exclude all groups that insist on 
keeping their right of expressive association (their right to exclude members 
and leaders who do not share the groups' expressive purposes).

Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar 
would have reversed the results in those cases, and led to the Court's 
permitting govt to deny the plaintiffs in those cases access to the public 
fora. No?

This case is not about equal funding for religious K-12 schools, as Marci 
suggests.

It is about whether a landmark body of law, protecting the right of free speech 
in public fora, will be eviscerated by a newly-created codicil allowing govt to 
restrict access to public fora by adopting all comers policies that strike at 
the heart of freedom of expressive association.

In a society committed to freedom of speech, expressive groups should not be 
forced to choose between their right to access a public forum and their right 
to expressive association.

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

"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)




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Re: Factual Clarification re CLS

2010-05-11 Thread Lisa A. Runquist


On 5/11/2010 8:05 AM, Steven Jamar wrote:
In a society committed to non-discrimination and equality, the 
government should not be required to subsidize hate groups and groups 
that exclude other on prohibited bases.
Are you saying CLS is a hate group?  Or that a religious 
organization is prohibited from having a statement of faith and 
requiring members to agree to that statement of faith?
If the society is truly committed to non-discrimination and equality, 
then it will treat all groups equally.  That means that Christians 
should have the same rights as others.  In fact, the first amendment was 
designed to PROTECT religious organizations, not to be a cudgel that 
allows the government to PROHIBIT them.


As to any "subsidy", I have several thoughts:  1.  If the position of 
the college was that it would allow student groups to meet but would not 
give any of them any funds, that would certainly be equal treatment, and 
might be the best solution.  2.  If the position of the college was that 
all student groups that met on the college could not be closed, but had 
to be open to participation (not membership) by anyone interested, that 
is again equal treatment.  3.  If the position of the college is that 
any student group could meet, but that it would fund only student groups 
that are not religious, is that equal treatment, or is that 
discrimination against religion?  If I were a student, and my student 
funds were going to other groups that did things I did not believe in, 
but my group was denied funding, I would probably think I was being 
discriminated against.



There are plenty of private places to meet.
I remember 35 years ago when I was a law student, seeing a notice for a 
CLS meeting.  I finally did get up enough courage to attend (long 
story).  Would I have attended if it had been someplace other than the 
law school?  I don't know.  I was working 20-30 hours a week as well as 
going to school full time so it would have made it much harder.
Would I have had any way of knowing about CLS if I had not seen the 
notice on the bulletin board?  Probably not.
Did becoming a member of CLS help me get thru school?  Yes.  I was not a 
part of any other group in law school; I did not belong even to any type 
of study group (I was pretty shy, had never known any lawyers before I 
went to law school, and did not know that people actually got together 
to study -- everything I did was pretty much on my own).  Although I am 
not currently a member of CLS, I was one for a number of years, and it 
did provide support that I did not get from any other group on campus.  
I must say that it certainly was more helpful than the beer bashes that 
were regularly funded by the school.


Lisa

And if the society wants to change the policy, it can do so -- unless 
it is constitutionalized. Do you really want this degree of 
constitutionalization of policy decisions?  Or do you want greater 
flexibility and political processes available to rectify results you 
find improper?


Accommodation would be ok -- making an exception would be 
constitutional, no?


Steve

On May 11, 2010, at 10:41 AM, Rick Duncan wrote:

In a society committed to freedom of speech, expressive groups should 
not be forced to choose between their right to access a public forum 
and their right to expressive association.


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


--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social 
Justice http://iipsj.org

Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/






--
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

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RE: Factual Clarification re CLS

2010-05-11 Thread Rick Duncan
I appreciate Alan's very helpful post particularly his concern about speech 
distortion.

I have a question for him and others.

Should severe restrictions on freedom of expressive association best be viewed 
as
a kind of viewpoint restriction? If groups speak through their leaders, and if 
leaders are elected by voting members, the ability of an expressive group to 
craft and articulate its viewpoint in a designated public forum is indeed made 
vulnerable to distortion or even total destruction when the state adopts a 
designated public forum requiring a waiver of associational freedom as a 
condition to access. 

I think this is what was bothering Justice Breyer. A marketplace of ideas 
requires a diversity of views, and a diversity of views is not served by groups 
that are denied the right to define an expressive identity. I think Breyer was 
saying such a "fantastical" forum is more like a group hug than a marketplace 
of ideas.

Like Doug Laycock, I have exams that need to be graded.

I can't wait to read the opinions that come down in this case.

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




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RE: Factual Clarification re CLS

2010-05-11 Thread Brownstein, Alan
Eugene's examples are all pretty powerful. They also demonstrate the arguably 
very weak utility of limited public forum doctrine for protecting freedom of 
association. Cases like Widmar and Good News Club are distinguishable because 
the Court has made it clear that limited public forum parameters cannot be 
viewpoint discriminatory. There is no Supreme Court case law (at least to my 
recollection) that prohibits the creation of a limited public forum that 
restricts access in a way that limits associational freedom.

I think that an all purpose, completely open, designated public forum should be 
treated just like a traditional public forum. I would argue that this rule 
would prohibit conditioning access on a group's waiving its associational 
freedom rights. But once we are in the world of limited public forums, the 
issue becomes much more complicated. We have a constitutional framework for 
reviewing viewpoint discriminatory, content discriminatory, and content neutral 
restrictions on access to a limited public forum. But what is the framework for 
reviewing a limited public forum that is defined in a way that burdens 
associational freedom? Is the freedom to determine the voting members of an 
organization more important than the freedom to express one's views on a 
particular subject. Content discriminatory regulations restrcting speech in a 
limited public forum are upheld under very deferential review.

It may very well be that a limited public forum that controls access through 
restrictions on associational freedom is of far less value to expressive groups 
than a more open forum. But state institutions are permitted to create limited 
public forums that are only of marginal use to speakers, just as they are 
permitted not to create a limited public  forum in the first place. What state 
institutions cannot do is to eggregiously distort public debate -- hence the 
prohibition against viewpoint discrimination. The best argument for CLS is that 
restrictions on the right of groups to determine their voting members distort 
debate as opposed to weakening debate.

Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, May 11, 2010 6:53 AM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

Rick Duncan writes:  "Consider this alternative description: Hastings is 
attempting to create a designated limited public forum for all student groups 
that are willing to waive their right to expressive association by being open 
to include all comers as members, including those who would detract from the 
group's expressive purposes Why is this condition on expressive association 
not an unconstitutional condition?"

I think the answer is that it's just a constitutionally permissible 
decision not to subsidy constitutionally protected activity.  Consider some 
examples:

A state is attempting to subsidize a wide range of medical care, but 
not for abortions.  If you want an abortion, get it with your own money.  
Constitutional.

A state is allowing a wide range of medical care in its hospitals, but 
not abortions.  If you want an abortion, get it on your private property.  
Constitutional.

A state is attempting to subsidize public education, but not private 
education.  If you want private education, get it with your own money.  
Constitutional.

The federal government is attempting to create a designated public 
forum -- a subsidy administered through 501(c)(3) tax deductions for charitable 
contributions -- for pretty much all nonprofit speakers, but only those who 
don't use tax-exempt money for constitutionally protected electioneering, even 
though this detracts from the group's expressive purpose.  If you want to 
electioneer, do it with unsubsidized funds.  Constitutional.

A university is attempting to create a designated public forum for all 
student groups that are run by students, but not those who exercise their right 
to expressive association by being run chiefly by outsiders, even when their 
expressive purpose would be better served by being run by outsiders (e.g., if 
the group belongs to an ideological movement that stresses central control by a 
church, or operation by the community or some subset of the community rather 
than by students).  If you want to associate in a way that is run by outsiders, 
do it with your own money and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that organize themselves democratically, but not those who 
exercise their right to expressive association by organizing themselves in a 
way in which the group is dominated by one student leader, even when their 
expressive purpose would be 

Re: Factual Clarification re CLS

2010-05-11 Thread Steven Jamar
In a society committed to non-discrimination and equality, the  
government should not be required to subsidize hate groups and groups  
that exclude other on prohibited bases.


There are plenty of private places to meet.

And if the society wants to change the policy, it can do so -- unless  
it is constitutionalized. Do you really want this degree of  
constitutionalization of policy decisions?  Or do you want greater  
flexibility and political processes available to rectify results you  
find improper?


Accommodation would be ok -- making an exception would be  
constitutional, no?


Steve

On May 11, 2010, at 10:41 AM, Rick Duncan wrote:

In a society committed to freedom of speech, expressive groups  
should not be forced to choose between their right to access a  
public forum and their right to expressive association.


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


--
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org

Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/


"Life is a banquet, and most poor suckers are starving to death!"

"Auntie Mame" by Patrick Dennis





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RE: Factual Clarification re CLS

2010-05-11 Thread Rick Duncan
 How fragile is the public forum protections of cases like Widmar, Lamb's 
Chapel, and Good News? Let me re-phrase one of Eugene's hypos:

"A [public library with unused meeting rooms] is attempting to create a 
designated public forum for all [community groups] that decline to discriminate 
in officers and members 
based on race, religion, sex, sexual orientation, [or any other reason], but 
not those 
who exercise their right to expressive association by so discriminating,
 even when their expressive purpose would be better served by 
discriminating.  If you want to associate in a way that discriminates, 
do it with your own money and your own property.  Why wouldn't this be 
equally constitutional?"

If Eugene's implication is correct, all the govt has to do to exclude church's, 
religious ministries, and even secular expressive groups like Planned 
Parenthood and the NAACP from public fora is to adopt an "all comers" rule as 
part of its designated forum policy and then exclude all groups that insist on 
keeping their right of expressive association (their right to exclude members 
and leaders who do not share the groups' expressive purposes). 

Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar 
would have reversed the results in those cases, and led to the Court's 
permitting govt to deny the plaintiffs in those cases access to the public 
fora. No?

This case is not about equal funding for religious K-12 schools, as Marci 
suggests. 

It is about whether a landmark body of law, protecting the right of free speech 
in public fora, will be eviscerated by a newly-created codicil allowing govt to 
restrict access to public fora by adopting all comers policies that strike at 
the heart of freedom of expressive association.

In a society committed to freedom of speech, expressive groups should not be 
forced to choose between their right to access a public forum and their right 
to expressive association. 

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


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)





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Re: Factual Clarification re CLS

2010-05-11 Thread hamilton02
Eugene is correct and this is extremely helpful.  But I think part of what is 
happening here is an agenda to incrementally reach a doctrine that requires 
public support for private schools.   No?  It is the "fairness" reasoning that 
has undergirded the push for federal public money for religious mission on the 
theory that it is "unfair" to exclude them.  

Marci 

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Tue, 11 May 2010 06:53:55 
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

Rick Duncan writes:  "Consider this alternative description: Hastings is 
attempting to create a designated limited public forum for all student groups 
that are willing to waive their right to expressive association by being open 
to include all comers as members, including those who would detract from the 
group's expressive purposes Why is this condition on expressive association 
not an unconstitutional condition?"

I think the answer is that it's just a constitutionally permissible 
decision not to subsidy constitutionally protected activity.  Consider some 
examples:

A state is attempting to subsidize a wide range of medical care, but not 
for abortions.  If you want an abortion, get it with your own money.  
Constitutional.

A state is allowing a wide range of medical care in its hospitals, but not 
abortions.  If you want an abortion, get it on your private property.  
Constitutional.

A state is attempting to subsidize public education, but not private 
education.  If you want private education, get it with your own money.  
Constitutional.

The federal government is attempting to create a designated public forum -- 
a subsidy administered through 501(c)(3) tax deductions for charitable 
contributions -- for pretty much all nonprofit speakers, but only those who 
don't use tax-exempt money for constitutionally protected electioneering, even 
though this detracts from the group's expressive purpose.  If you want to 
electioneer, do it with unsubsidized funds.  Constitutional.

A university is attempting to create a designated public forum for all 
student groups that are run by students, but not those who exercise their right 
to expressive association by being run chiefly by outsiders, even when their 
expressive purpose would be better served by being run by outsiders (e.g., if 
the group belongs to an ideological movement that stresses central control by a 
church, or operation by the community or some subset of the community rather 
than by students).  If you want to associate in a way that is run by outsiders, 
do it with your own money and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that organize themselves democratically, but not those who 
exercise their right to expressive association by organizing themselves in a 
way in which the group is dominated by one student leader, even when their 
expressive purpose would be better served by being run nondemocratically.  If 
you want to associate in a way that isn't democratic, do it with your own money 
and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that decline to discriminate in officers and members based on 
race, religion, sex, sexual orientation, etc., but not those who exercise their 
right to expressive association by so discriminating, even when their 
expressive purpose would be better served by discriminating.  If you want to 
associate in a way that discriminates, do it with your own money and your own 
property.  Why wouldn't this be equally constitutional?

Eugene
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RE: Factual Clarification re CLS

2010-05-11 Thread Volokh, Eugene
Rick Duncan writes:  "Consider this alternative description: Hastings is 
attempting to create a designated limited public forum for all student groups 
that are willing to waive their right to expressive association by being open 
to include all comers as members, including those who would detract from the 
group's expressive purposes Why is this condition on expressive association 
not an unconstitutional condition?"

I think the answer is that it's just a constitutionally permissible 
decision not to subsidy constitutionally protected activity.  Consider some 
examples:

A state is attempting to subsidize a wide range of medical care, but 
not for abortions.  If you want an abortion, get it with your own money.  
Constitutional.

A state is allowing a wide range of medical care in its hospitals, but 
not abortions.  If you want an abortion, get it on your private property.  
Constitutional.

A state is attempting to subsidize public education, but not private 
education.  If you want private education, get it with your own money.  
Constitutional.

The federal government is attempting to create a designated public 
forum -- a subsidy administered through 501(c)(3) tax deductions for charitable 
contributions -- for pretty much all nonprofit speakers, but only those who 
don't use tax-exempt money for constitutionally protected electioneering, even 
though this detracts from the group's expressive purpose.  If you want to 
electioneer, do it with unsubsidized funds.  Constitutional.

A university is attempting to create a designated public forum for all 
student groups that are run by students, but not those who exercise their right 
to expressive association by being run chiefly by outsiders, even when their 
expressive purpose would be better served by being run by outsiders (e.g., if 
the group belongs to an ideological movement that stresses central control by a 
church, or operation by the community or some subset of the community rather 
than by students).  If you want to associate in a way that is run by outsiders, 
do it with your own money and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that organize themselves democratically, but not those who 
exercise their right to expressive association by organizing themselves in a 
way in which the group is dominated by one student leader, even when their 
expressive purpose would be better served by being run nondemocratically.  If 
you want to associate in a way that isn't democratic, do it with your own money 
and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that decline to discriminate in officers and members based on 
race, religion, sex, sexual orientation, etc., but not those who exercise their 
right to expressive association by so discriminating, even when their 
expressive purpose would be better served by discriminating.  If you want to 
associate in a way that discriminates, do it with your own money and your own 
property.  Why wouldn't this be equally constitutional?

Eugene
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RE: Factual Clarification re CLS

2010-05-11 Thread Rick Duncan
Alan writes: 

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


Hastings created the all comers policy on the fly, perhaps as part of its 
litigation strategy, but I think Alan sums up their effort in the best light 
possible.

Consider this alternative description: Hastings is attempting to create a 
designated limited public forum for all student groups that are willing to 
waive their right to expressive association by being open to include all comers 
as members, including those who would detract from the group's expressive 
purposes.

Is this another accurate way of summing up what Hastings is trying to do?

Why is this condition on expressive association not an unconstitutional 
condition?

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


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)





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RE: Factual Clarification re CLS

2010-05-10 Thread Brownstein, Alan
Mark's helpful post provides a thoughtful response to my earlier question -- 
but in doing so, it raises another question about the potential scope of the 
Court holding in the CLS case.

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

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

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

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

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

Alan Brownstein


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

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

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

To the extent that participation in discussion by students

RE: Factual Clarification re CLS

2010-05-10 Thread Rick Duncan
Chip writes:

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

A couple of points.

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

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

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

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

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

Rick



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





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Re: Factual Clarification re CLS

2010-05-10 Thread Lisa A. Runquist
While I agree with Rick's analysis, I would also point out that if the 
organization wants a closed meeting, it does not have to occur on the 
university campus.  It can find a local church, a dorm room, or some 
other similar location.


Lisa

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

Alan asks a great question:

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


Just asking."


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


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


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


Rick

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



--
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Runquist&  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com




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Re: Factual Clarification re CLS

2010-05-10 Thread Lisa A. Runquist


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

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

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

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

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


Ira C. Lupu
F. Elwood&  Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
   

Date: Mon, 10 May 2010 14:45:10 -0700 (PDT)
From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick 
Duncan)
Subject: RE: Factual Clarification re CLS
To: Law&  Religion issues for Law Academics

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

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

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

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

   Rick Duncan

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

__




--
Lisa A. Runquist
Runquist&  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com



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RE: Factual Clarification re CLS

2010-05-10 Thread Ira (Chip) Lupu
Rick writes "If all groups must allow everyone and anyone to participate in the 
formation of its beliefs, there will be no diversity of ideas in the 
marketplace. Just a lot of watered down, least common denominators of 
expression."  

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

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Mon, 10 May 2010 15:28:12 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   Alan asks a great question:  
>
>   "I understand that the facts of CLS v. Martinez case 
>   are limited to voting membership and eligibility for 
>   leadership positions. But if the foundation of the   
>   CLS claim is that it is being required to sacrifice  
>   its freedom of association rights to obtain access   
>   to a designated public forum, why wouldn’t those   
>   associational freedom rights also extend to deciding 
>   to who may attend meetings and participate in
>   discussions? 
>
>
>
>   Just asking."
>
>   I think the essence of expressive association is 
>   that an expressive group speaks through its leaders, 
>   and leaders are elected by voting members.   
>
>   Hastings has created a limited public forum for the  
>   express purpose of creating a diverse marketplace of 
>   ideas. Even if the all comers policy is viewpoint
>   neutral, Hastings reason for excluding a student 
>   group from its forum must be reasonable in light of  
>   the purpose of the forum. This policy is not 
>   reasonable in light of the purpose of the forum; it  
>   is destructive of a marketplace of ideas, of a forum 
>   in which groups with diverse beliefs come together   
>   to debate and express very different views about the 
>   good life and what is true, what is good, and what   
>   is beautiful.
>
>   If all groups must allow everyone and anyone to  
>   participate in the formation of its beliefs, there   
>   will be no diversity of ideas in the marketplace.
>   Just a lot of watered down, least common 
>   denominators of expression.  
>
>   Rick 
>
>   Rick Duncan  
>   Welpton Professor of Law 
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902   
>
>   "And against the constitution I have never raised a  
>   storm,It's the scoundr

RE: Factual Clarification re CLS

2010-05-10 Thread Rick Duncan
Alan asks a great question:

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

   

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

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

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

Rick

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


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)





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RE: Factual Clarification re CLS

2010-05-10 Thread Scarberry, Mark
Alan's question is (as always) a fair one. 

 

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

 

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

 

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

 

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

 

Mark Scarberry

Pepperdine

 

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

 

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

 

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

 

Just asking.

 

Alan Brownstein

UC Davis School of Law

 

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

 

Ira Lupu writes:



In a law school, there is certainly a rational basis for coming down on
the side of non-exclusivity as a condition of access to the forum and
its privileges -- among other things, all-comers increases the
likelihood of dynamic exchange of views, something a law school may
legitimately value.  CLS is not a church, and neither is Outlaw, and yet
(if Hastings prevails) both will wind up with (only) the members
sympathetic to their respective purposes.


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

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

Art Spitzer

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RE: Factual Clarification re CLS

2010-05-10 Thread Ira (Chip) Lupu
I was at the oral argument in CLS v. Hastings.  I think Marci's interpretation 
of Breyer's questions and comments is quite right.  We'll know soon enough, but 
(from his questions, tone, and facial expression -- the latter two don't come 
through in a transcript -- at argument) I will be very surprised if Breyer 
joins an opinion that says an "all-comers" policy in this context is 
unconstitutional.

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

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

  
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Mon, 10 May 2010 14:45:10 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   Perhaps democrats will not attempt to take control   
>   of the Young Republicans.
>
>   But I think there is a good chance that socially 
>   liberal Christians may take control of a 
>   conservative Christian group that can't protect its  
>   doctrinal beliefs through its membership policy. 
>
>   By the way, it is clear that the CLS allows all  
>   comers to attend its meetings. This case is strictly 
>   about who can control an organization's beliefs and  
>   speech, not about who may attend meetings.   
>
>   I have read the oral argument transcript several 
>   times. And it is clear to me that Breyer believes an 
>   all comers membership policy is silly and completely 
>   inconsistent with a marketplace of ideas in which
>   many groups with different beliefs debate and
>   express different ideas from very different  
>   perspectives.
>
>   Rick Duncan  
>
>   Rick Duncan  
>   Welpton Professor of Law 
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902   
>
>___
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
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>
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>can read the Web archives; and list members can (rightly or wrongly) forward 
>the messages to others.
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Re: Factual Clarification re CLS

2010-05-10 Thread ArtSpitzer

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

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

Art Spitzer
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RE: Factual Clarification re CLS

2010-05-10 Thread Brownstein, Alan
I understand that the facts of CLS v. Martinez case are limited to voting 
membership and eligibility for leadership positions. But if the foundation of 
the CLS claim is that it is being required to sacrifice its freedom of 
association rights to obtain access to a designated public forum, why wouldn't 
those associational freedom rights also extend to deciding to who may attend 
meetings and participate in discussions?

Just asking.

Alan Brownstein
UC Davis School of Law

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

Ira Lupu writes:


In a law school, there is certainly a rational basis for coming down on the 
side of non-exclusivity as a condition of access to the forum and its 
privileges -- among other things, all-comers increases the likelihood of 
dynamic exchange of views, something a law school may legitimately value.  CLS 
is not a church, and neither is Outlaw, and yet (if Hastings prevails) both 
will wind up with (only) the members sympathetic to their respective purposes.

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

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

Art Spitzer

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RE: Factual Clarification re CLS

2010-05-10 Thread Esenberg, Richard
Quite apart from Justice Breyer's view of the matter, the all comers policy 
does seem fantastical since it wasn't cited by Hastings until after the matter 
was in suit and recognized student organizations had all sorts of limitations 
on who could become voting members or officers. One even had a racial 
exclusion. All were unrenarked upon by Hastings until this case came along. 
While I understand that the plaintiffs stipulated that that this was in fact at 
least one policy, it does seem like a contrivance (which doesn't mean it can be 
upheld).

It is certainly the case that lawyers ought to learn to see (or, better put, 
understand the arguments on all sides of an issue) but it seems unlikely that 
an all comers policy will serve that end. Either no dissenters will join CLS, 
i.e., the takeover will not happen either due to incentives for cooperation or 
some other reason (in which case the all comers policy serves no real purpose) 
or they will in which case the group's message will be bent to the consensus. 
While that might happen because CLS members will be persuaded to abandon their 
retrograde ways, it seems just as likely - if not more likely - that the 
group's message will be diluted by the inclusion of those who don't share it. 
The end result is not to encourage diversity of viewpoints but to drive the 
range of viewpoints to those held by a consensus of students or, perhaps more 
accurately, a consensus of those students who find the expression of divergent 
points of view to be offensive or discriminatory.

In any event, requiring CLS to accept those with differing points of view as 
voting members (as opposed to permitting them to attend and participate in CLS 
events as is already the case) is hardly the least restrictive alternatives.

Of course, the case goes beyond Rosenberger's facts, but not necessarily its 
rationale. Hastings policy discriminates against creedal groups, i.e., those 
who define themselves by the desire to adhere to and promote some particular 
viewpoint. It is certainly an extension of the law to say that Rosenberger's 
prohibition against restricting participation in a forum to viewpoints about 
temporal matters might also cover restricting participation to those who insist 
on no particular point of view, but I am not sure it is an unreasonable one.

Rick


Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Monday, May 10, 2010 4:07 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Factual Clarification re CLS

I think Rick misreads Justice Breyer's comments.  He was playing Michael, 
saying, tongue-in-cheek, that it would be "fantastical" that there would be 
this open exchange between opposing views on a law school campus.  Michael was 
resisting agreeing that such an exchange was likely or good, and so Breyer 
needed to bring him back to another view of the universe to get Michael to 
answer the question he wanted answered.  Careful reading of the transcript does 
not support Rick's interpretation.

 I think a law school has a compelling interest in having an all-comers policy, 
because it encourages lawyers to see all sides of every issue, regardless of 
their existing predispositions, which is crucial to becoming a good lawyer, no?

In any event, this case is not about whether or not this group can protect its 
associational rights to exclude certain believers and actors.  It is about 
whether a public university law school must provide certain meeting rooms and 
certain bulletin boards and money to a group that insists on exclusionary 
practices among its voting membership and leadership.  There are no rules that 
forbid the group from meeting or holding the beliefs it holds.  It is an 
attempt to move Rosenberger beyond its facts.  I thought Rosenberger was 
wrongly decided, but cleverly argued.  I think the Court needs to draw the line 
on this foolhardy doctrine before schools are required to have to pay for all 
worship services, which surely is not required by the First Amendment.  Only 
Chief Justice Roberts and Justice Alito made any real effort to defend CLS's 
position, which seems to me to bode well for Martinez.  But I would not have 
thought it possible that a majority of the Supreme Court today would !
 agree that white crosses are the standard marker for our diverse array of 
soldiers, so as usual, it will be interesting to see what happens.

Marci


In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, 
icl...@law.gwu.edu writes:
This concern about associations getting taken over by hostile forces is 
completely ungrounded -- it never happens, and for an obvious reason. 

RE: Factual Clarification re CLS

2010-05-10 Thread Rick Duncan
Perhaps democrats will not attempt to take control of the Young Republicans.

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

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

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

Rick Duncan

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



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Re: Factual Clarification re CLS

2010-05-10 Thread ArtSpitzer
Ira Lupu writes:

> In a law school, there is certainly a rational basis for coming down on 
> the side of non-exclusivity as a condition of access to the forum and its 
> privileges -- among other things, all-comers increases the likelihood of 
> dynamic exchange of views, something a law school may legitimately value.  
> CLS 
> is not a church, and neither is Outlaw, and yet (if Hastings prevails) both 
> will wind up with (only) the members sympathetic to their respective 
> purposes.
> 
> 
But isn't that purpose fully served by requiring that campus groups allow 
all comers to attend meetings and participate in discussions?   Does voting 
membership or eligibility for leadership positions further serve that 
purpose?

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

Art Spitzer
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Re: Factual Clarification re CLS

2010-05-10 Thread ArtSpitzer
Apparently the Scientologists tried twice; two reported cases seem to fit 
Marc's description:

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

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

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


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


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

2010-05-10 Thread Hamilton02
 
I think Rick misreads Justice Breyer's comments.  He was playing  Michael, 
saying, tongue-in-cheek, that it would be "fantastical" that there  would be 
this open exchange between opposing views on a law school  campus.  Michael 
was resisting agreeing that such an exchange was  likely or good, and so 
Breyer needed to bring him back to another view  of the universe to get 
Michael to answer the question he wanted  answered.  Careful reading of the 
transcript does not support Rick's  interpretation.
 
 I think a law school has a compelling interest in having an  all-comers 
policy, because it encourages lawyers to see all sides of every  issue, 
regardless of their existing predispositions, which is crucial to  becoming a 
good 
lawyer, no?  
 
In any event, this case is not about whether or not this group can protect  
its associational rights to exclude certain believers and actors.  It is  
about whether a public university law school must provide certain meeting  
rooms and certain bulletin boards and money to a group that insists on  
exclusionary practices among its voting membership and leadership.  There  are 
no 
rules that forbid the group from meeting or holding the beliefs it  holds.  
It is an attempt to move Rosenberger beyond its facts.  I  thought 
Rosenberger was wrongly decided, but cleverly argued.  I think  the Court needs 
to 
draw the line on this foolhardy doctrine before schools  are required to have 
to pay for all worship services, which surely is not  required by the First 
Amendment.  Only Chief Justice Roberts and  Justice Alito made any real 
effort to defend CLS's position, which seems to  me to bode well for Martinez.  
But I would not have thought it possible  that a majority of the Supreme 
Court today would agree that white crosses  are the standard marker for our 
diverse array of soldiers, so as usual, it will  be interesting to see what 
happens.
 
Marci
 
 
In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time,  
icl...@law.gwu.edu writes:

This  concern about associations getting taken over by hostile forces is 
completely  ungrounded -- it never happens, and for an obvious reason.  These 
kinds  of fora are cooperation games -- no group is ever a majority (even 
the  Democratic law students at a liberal law school have a relatively small 
number  of active members), and every group is vulnerable to takeover.  But  
takeover would invite tit-for-tat counter-takeover.  CLS members could  
intrude on the GLBT group, and vice versa.  Everyone knows this, so all  of the 
incentives are lined up in ways that make this extremely unlikely to  occur. 
 (Yes, if the KKK had a campus group, enraged others might try to  "invade 
and destroy" the association, but that example is sui generis, just  like 
the Bob Jones case.)

If CLS had not litigated this, and had filed  by-laws with Hastings LS that 
said CLS was open to all comers, there is no  reason to expect that those 
who reject orthodox Christianity would try to  join.  Someone just has to 
show forbearance -- either the school by  allowing discrimination based on 
beliefs (which could be a pretext for other  kinds of discrimination), or the 
groups by being open to "all comers"  (confident that the process of selecting 
and joining would bring them no  hostile members).   In a law school, there 
is certainly a rational  basis for coming down on the side of 
non-exclusivity as a condition of access  to the forum and its privileges  -- 
among other 
things, all-comers  increases the likelihood of dynamic exchange of views, 
something a law school  may legitimately value.  CLS is not a church, and 
neither is Outlaw, and  yet (if Hastings prevails) both will wind up with 
(only) the members  sympathetic to their respective purposes.


Ira C. Lupu
F.  Elwood & Eleanor Davis Professor of Law
George Washington University  Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My  SSRN papers are  here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


  Original message 
>Date: Mon, 10 May 2010 11:47:00 -0700  (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick  Duncan 
)
>Subject: RE: Factual  Clarification re CLS  
>To: Law & Religion issues for Law  Academics 
>
>Interestingly, Hastings takes the position that the  
>policy it is enforcing against the CLS is not a   
>   sexual orientation policy, but an "all comers"   
>   policy, a policy that forbids any  group from 
>discriminating against any person who wishes to be a 
>member. Under this policy, an NAACP student group 
>   would have to admit racists as voting members and   
>   even leaders of the group, and the Young  Republicans 
>   would have to allow democrats to be voting  members   
>   and leaders.
> 
>   I think the school took this tac

RE: Factual Clarification re CLS

2010-05-10 Thread Ira (Chip) Lupu
Did this attempted takeover of the anti-cult group by Scientologists happen in 
a law school, or other educational institution, where the cooperation 
incentives are maximized?  If you are going to offer real examples, more 
details would be helpful.  

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

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Mon, 10 May 2010 16:49:55 -0400
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" 
>)
>Subject: RE: Factual Clarification re CLS  
>To: "Law & Religion issues for Law Academics" 
>
>It is not true that it never happens. I think it was scientology in the
>late 70's or early 80's  Scientology tried to take over an anti-cult
>group,invokng the Unruh Act. The California courts saw through the
>effort.
>Marc
>
>-Original Message-
>From: religionlaw-boun...@lists.ucla.edu
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
>Sent: Monday, May 10, 2010 4:41 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Factual Clarification re CLS
>
>This concern about associations getting taken over by hostile forces is
>completely ungrounded -- it never happens, and for an obvious reason.
>These kinds of fora are cooperation games -- no group is ever a majority
>(even the Democratic law students at a liberal law school have a
>relatively small number of active members), and every group is
>vulnerable to takeover.  But takeover would invite tit-for-tat
>counter-takeover.  CLS members could intrude on the GLBT group, and vice
>versa.  Everyone knows this, so all of the incentives are lined up in
>ways that make this extremely unlikely to occur.  (Yes, if the KKK had a
>campus group, enraged others might try to "invade and destroy" the
>association, but that example is sui generis, just like the Bob Jones
>case.)
>
>If CLS had not litigated this, and had filed by-laws with Hastings LS
>that said CLS was open to all comers, there is no reason to expect that
>those who reject orthodox Christianity would try to join.  Someone just
>has to show forbearance -- either the school by allowing discrimination
>based on beliefs (which could be a pretext for other kinds of
>discrimination), or the groups by being open to "all comers" (confident
>that the process of selecting and joining would bring them no hostile
>members).   In a law school, there is certainly a rational basis for
>coming down on the side of non-exclusivity as a condition of access to
>the forum and its privileges  -- among other things, all-comers
>increases the likelihood of dynamic exchange of views, something a law
>school may legitimately value.  CLS is not a church, and neither is
>Outlaw, and yet (if Hastings prevails) both will wind up with (only) the
>members sympathetic to their respective purposes.
>
>  
>Ira C. Lupu
>F. Elwood & Eleanor Davis Professor of Law George Washington University
>Law School 2000 H St., NW Washington, DC 20052
>(202)994-7053
>My SSRN papers are here:
>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
> Original message 
>>Date: Mon, 10 May 2010 11:47:00 -0700 (PDT)
>>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan
>)
>>Subject: RE: Factual Clarification re CLS  
>>To: Law & Religion issues for Law Academics
>
>>
>>   Interestingly, Hastings takes the position that the  
>>   policy it is enforcing against the CLS is not a  
>>   sexual orientation policy, but an "all comers"   
>>   policy, a policy that forbids any group from 
>>   discriminating against any person who wishes to be a 
>>   member. Under this policy, an NAACP student group
>>   would have to admit racists as voting members and
>>   even leaders of the group, and the Young Republicans 
>>   would have to allow democrats to be voting members   
>>   and leaders. 
>>
>>   I think t

RE: Factual Clarification re CLS

2010-05-10 Thread Marc Stern
It is not true that it never happens. I think it was scientology in the
late 70's or early 80's  Scientology tried to take over an anti-cult
group,invokng the Unruh Act. The California courts saw through the
effort.
Marc

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

This concern about associations getting taken over by hostile forces is
completely ungrounded -- it never happens, and for an obvious reason.
These kinds of fora are cooperation games -- no group is ever a majority
(even the Democratic law students at a liberal law school have a
relatively small number of active members), and every group is
vulnerable to takeover.  But takeover would invite tit-for-tat
counter-takeover.  CLS members could intrude on the GLBT group, and vice
versa.  Everyone knows this, so all of the incentives are lined up in
ways that make this extremely unlikely to occur.  (Yes, if the KKK had a
campus group, enraged others might try to "invade and destroy" the
association, but that example is sui generis, just like the Bob Jones
case.)

If CLS had not litigated this, and had filed by-laws with Hastings LS
that said CLS was open to all comers, there is no reason to expect that
those who reject orthodox Christianity would try to join.  Someone just
has to show forbearance -- either the school by allowing discrimination
based on beliefs (which could be a pretext for other kinds of
discrimination), or the groups by being open to "all comers" (confident
that the process of selecting and joining would bring them no hostile
members).   In a law school, there is certainly a rational basis for
coming down on the side of non-exclusivity as a condition of access to
the forum and its privileges  -- among other things, all-comers
increases the likelihood of dynamic exchange of views, something a law
school may legitimately value.  CLS is not a church, and neither is
Outlaw, and yet (if Hastings prevails) both will wind up with (only) the
members sympathetic to their respective purposes.

  
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law George Washington University
Law School 2000 H St., NW Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Mon, 10 May 2010 11:47:00 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan
)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics

>
>   Interestingly, Hastings takes the position that the  
>   policy it is enforcing against the CLS is not a  
>   sexual orientation policy, but an "all comers"   
>   policy, a policy that forbids any group from 
>   discriminating against any person who wishes to be a 
>   member. Under this policy, an NAACP student group
>   would have to admit racists as voting members and
>   even leaders of the group, and the Young Republicans 
>   would have to allow democrats to be voting members   
>   and leaders. 
>
>   I think the school took this tack to avoid the   
>   viewpoint discrimination argument, but may have  
>   substituted an even greater problem for the one it   
>   seeks to avoid.  
>
>   The school may even lose Justice Breyer, who in the  
>   oral argument referred to the policy as  
>   "fantastical"  and as creating a silly kind of forum 
>   in which "everyone gets together in a nice   
>   discussion group and hugs each other."   
>
>   That led Mike McConnell to conclude that the policy  
>   does not even provide a rational basis for excluding 
>   a student group from a forum with the stated purpose 
>   of creating a diverse marketplace of ideas. As Mike  
>   put it, the all comers policy does not even slightly 
>   advance the stated purpose of the forum, and indeed  
>   is destructive of that purpose by prohibiting groups 
>   from having a membership policy based upon its   
>   organizing principles and beliefs.   
>
>   Rick Duncan  
>   Welpton Professor of Law 
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902   
>

RE: Factual Clarification re CLS

2010-05-10 Thread Ira (Chip) Lupu
This concern about associations getting taken over by hostile forces is 
completely ungrounded -- it never happens, and for an obvious reason.  These 
kinds of fora are cooperation games -- no group is ever a majority (even the 
Democratic law students at a liberal law school have a relatively small number 
of active members), and every group is vulnerable to takeover.  But takeover 
would invite tit-for-tat counter-takeover.  CLS members could intrude on the 
GLBT group, and vice versa.  Everyone knows this, so all of the incentives are 
lined up in ways that make this extremely unlikely to occur.  (Yes, if the KKK 
had a campus group, enraged others might try to "invade and destroy" the 
association, but that example is sui generis, just like the Bob Jones case.)

If CLS had not litigated this, and had filed by-laws with Hastings LS that said 
CLS was open to all comers, there is no reason to expect that those who reject 
orthodox Christianity would try to join.  Someone just has to show forbearance 
-- either the school by allowing discrimination based on beliefs (which could 
be a pretext for other kinds of discrimination), or the groups by being open to 
"all comers" (confident that the process of selecting and joining would bring 
them no hostile members).   In a law school, there is certainly a rational 
basis for coming down on the side of non-exclusivity as a condition of access 
to the forum and its privileges  -- among other things, all-comers increases 
the likelihood of dynamic exchange of views, something a law school may 
legitimately value.  CLS is not a church, and neither is Outlaw, and yet (if 
Hastings prevails) both will wind up with (only) the members sympathetic to 
their respective purposes.

  
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Mon, 10 May 2010 11:47:00 -0700 (PDT)
>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan 
>)
>Subject: RE: Factual Clarification re CLS  
>To: Law & Religion issues for Law Academics 
>
>   Interestingly, Hastings takes the position that the  
>   policy it is enforcing against the CLS is not a  
>   sexual orientation policy, but an "all comers"   
>   policy, a policy that forbids any group from 
>   discriminating against any person who wishes to be a 
>   member. Under this policy, an NAACP student group
>   would have to admit racists as voting members and
>   even leaders of the group, and the Young Republicans 
>   would have to allow democrats to be voting members   
>   and leaders. 
>
>   I think the school took this tack to avoid the   
>   viewpoint discrimination argument, but may have  
>   substituted an even greater problem for the one it   
>   seeks to avoid.  
>
>   The school may even lose Justice Breyer, who in the  
>   oral argument referred to the policy as  
>   "fantastical"  and as creating a silly kind of forum 
>   in which "everyone gets together in a nice   
>   discussion group and hugs each other."   
>
>   That led Mike McConnell to conclude that the policy  
>   does not even provide a rational basis for excluding 
>   a student group from a forum with the stated purpose 
>   of creating a diverse marketplace of ideas. As Mike  
>   put it, the all comers policy does not even slightly 
>   advance the stated purpose of the forum, and indeed  
>   is destructive of that purpose by prohibiting groups 
>   from having a membership policy based upon its   
>   organizing principles and beliefs.   
>
>   Rick Duncan  
>   Welpton Professor of Law 
>   University of Nebraska College of Law
>   Lincoln, NE 68583-0902   
>
>   "And against the constitution I have never raised a  
>   storm,It's the scoundrels who've corrupted it that I 
>   want to reform" --Dick Gaughan (from the song,   
>   Thomas Muir of Huntershill)  
>
>___
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change opti

RE: Factual Clarification re CLS

2010-05-10 Thread Scarberry, Mark
The all comers policy may not be viewpoint discriminatory, but it is in,
at least in potential, viewpoint annihilatory. That makes it nonsensical
for a forum explicitly designed to encourage a diversity of viewpoints.

 

Mark Scarberry

Pepperdine

 

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

 

Interestingly, Hastings takes the position that the policy it is
enforcing against the CLS is not a sexual orientation policy, but an
"all comers" policy, a policy that forbids any group from discriminating
against any person who wishes to be a member. Under this policy, an
NAACP student group would have to admit racists as voting members and
even leaders of the group, and the Young Republicans would have to allow
democrats to be voting members and leaders.

I think the school took this tack to avoid the viewpoint discrimination
argument, but may have substituted an even greater problem for the one
it seeks to avoid.

The school may even lose Justice Breyer, who in the oral argument
referred to the policy as "fantastical"  and as creating a silly kind of
forum in which "everyone gets together in a nice discussion group and
hugs each other."

That led Mike McConnell to conclude that the policy does not even
provide a rational basis for excluding a student group from a forum with
the stated purpose of creating a diverse marketplace of ideas. As Mike
put it, the all comers policy does not even slightly advance the stated
purpose of the forum, and indeed is destructive of that purpose by
prohibiting groups from having a membership policy based upon its
organizing principles and beliefs.




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



"And against the constitution I have never raised a storm,It's the
scoundrels who've corrupted it that I want to reform" --Dick Gaughan
(from the song, Thomas Muir of Huntershill)

 

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RE: Factual Clarification re CLS

2010-05-10 Thread Rick Duncan
Interestingly, Hastings takes the position that the policy it is 
enforcing against the CLS is not a sexual orientation policy, but an 
"all comers" policy, a policy that forbids any group from discriminating
 against any person who wishes to be a member. Under this policy, an 
NAACP student group would have to admit racists as voting members and 
even leaders of the group, and the Young Republicans would have to allow
 democrats to be voting members and leaders.

I think the school 
took this tack to avoid the viewpoint discrimination argument, but may 
have substituted an even greater problem for the one it seeks to avoid.

The
 school may even lose Justice Breyer, who in the oral argument referred 
to the policy as "fantastical"  and as creating a silly kind of forum in
 which "everyone gets together in a nice discussion group and hugs each
 other."

That led Mike McConnell to conclude that the policy does
 not even provide a rational basis for excluding a student group from a 
forum with the stated purpose of creating a diverse marketplace of 
ideas. As Mike put it, the all comers policy does not even slightly 
advance the stated purpose of the forum, and indeed is destructive of 
that purpose by prohibiting groups from having a membership policy based
 upon its organizing principles and beliefs.



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


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)



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RE: Factual Clarification re CLS

2010-05-10 Thread Esenberg, Richard
Douglas Laycock is certainly correct that CLS' statement of belief also calls 
for heterosexual students to refrain from sex outside of marriage, but I am not 
sure that does much work in resolving the tension between the desire to 
prohibit discrimination based on a status that is tied to at least a desire to 
engage in certain forms of behavior and the assertion of an associational right 
that excludes anyone who acts on that status. Nor does it change the fact that 
CLS most certainly - and quite explicity - draws a distinction between sexual 
orientation and acting on that orientation.

In response to David Cruz' question, CLS would not extend membership to persons 
engaged in sexual activity within a same sex marriage or civil union. Its 
policy is not simply about sex outside of a marriage without regard to sexual 
orientation. CLS would exclude sexually active homosexuals even if, for 
example, Prop 8 was declared unconstitutional or improperly enacted, and those 
couples were married. CLS' statement of belief calls for members to refrain 
from "all acts of sexual conduct outside of God’s design for marriage between 
one man and one woman, which acts include fornication, adultery, and homosexual 
conduct.”  So, at the same time that it insists on sex within marriage, it 
makes clear that marriage may not be between persons of the same sex.

CLS certainly believes that its policy creates a "distinction between sexual 
orientation and sexual conduct" - although I agree that it is not simply that. 
In its letter to its Hastings requesting recognition, CLS quite forthrightly 
said that a "person who engages in homosexual conduct or adheres to the 
viewpoint that homosexual conduct is not a sin" cannot be a chapter officer or 
member. It also said that a person "who has homosexual inclinations ut does not 
engage in or affirm homosexual conduct" can be an officer or member.

Now, I don't think its entirely unfair to say that this has a disparate impact 
on gays and lesbians (and, if it is unfair, it is certainly not because there 
are many more heterosexuals than homosexuals.) The policy excludes all sexually 
active homosexuals but only those sexually active heterosexuals who have sex 
outside of marriage.

But I don't see the notion of disparate impact as helpful at all. The question, 
rather, is whether CLS' rights of association entitle it to make that 
distinction or, in the particular context of public fora analysis, whether 
Hastings decision to condition recognition of the group as a student 
organization is viewpoint neutral.

My own view is that CLS - certainly outside the public forum context but, I 
would argue, within it as well - should be permitted to exclude those who do 
not share its views. Pushed to its logical conclusion, this may result in hard 
cases in which the question becomes whether these associational rights can be 
pushed to permit the exclusion not only of those persons who wish to act on a 
status but who adhere to views about that status on which otherwise applicable 
antidiscrimination law is based.

Rick

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [layco...@umich.edu]
Sent: Monday, May 10, 2010 11:53 AM
To: Law & Religion issues for Law Academics
Subject: Factual Clarification re CLS

CLS's membership policy does not turn on the .  CLS's rule prohibits any 
unrepentant sexual relationships outside marriage, whether same-sex or 
opposite-sex.  There is no classification based on sexual orientation. There is 
no disparate impact; there no are no doubt many more Hastings students in 
sexually active opposite-sex relationships than in sexually active same-sex 
relationships.

It is true that the opposite-sex couples could legally get married, and the 
same-sex couples could not, but that has little relevance to the unmarried 
opposite-sex couples, who are unmarried for a reason:  they are finanically or 
emotionally unprepared for marriage, or not yet ready to settle down, or 
commit, or whatever.  Most of the same-sex couples are probably int he same 
situation in addition to being legally unable to marry.  Anyone who is having 
sex and for whatever reason isn't married is excluded by the CLS rule.

Quoting "Esenberg, Richard" :

> CLS v. Martinez occurred to me too. Although there are the
> complications of public fora analysis, it seems to me that the case
> may begin a process of facing the inevitable conflict presented by
> efforts to define a perspective that is still shared by a significant
> portion of the population - perhaps even a majority - as invidious
> discrimination. This str

Re: Factual Clarification re CLS

2010-05-10 Thread Douglas Laycock
I agree with David on the facts.  A same-sex couple married during California's 
window could not join CLS, as I understand it.  That is sexual orientation 
discrimination, which CLS defends on the basis that anyone in such a marriage 
has demonstrated that he doesn't subscribe to the statement of faith.  That 
case, if there is such a couple at Hastings, squarely poses the issue Chris 
Lund raised that started this thread.

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

Quoting David Cruz :

> I'm not sure my understanding of the CLS policy agrees 100% with 
> Doug's.  Whether or not you call it a disparate impact, I believe 
> there is what groups like Lambda have been litigating as an 
> insurmountable obstacle faced by same-sex couples that different-sex 
> couples don't face.  My understanding was that the CLS policy 
> excluded people who were not in what CLS considered a biblical 
> marriage; that is, I thought CLS didn't care if a same-sex couple was 
> civilly married in the few months it was legal in California, for 
> example, but instead maintained that a same-sex relationship 
> *couldn't be* a marriage (in the biblical sense) and hence same-sex 
> couples could not ever have marital sex (regardless of civil law).  
> Thus, if I'm right, it's possible for straight people to be sexually 
> active and members of CLS, but not for gay people.
>
> If, however, Doug or someone can point to evidence that CLS accepts 
> sexual activity within a *civil* same-sex marriage, then it would be 
> more complicated though not necessarily impossible to conclude that 
> there is no sexual orientation discrimination.  But if my 
> understanding is right, I think there is sexual orientation 
> discrimination (as I reject the notion that it wouldn't discriminate 
> against gay and lesbian people to say, you're as free as straight 
> people to marry and have sex with a person of a different sex, and 
> straight people are as forbidden as gay and lesbian people to have 
> sex with a person of the same sex).
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On May 10, 2010, at 9:53 AM, Douglas Laycock wrote:
>
> CLS's membership policy does not turn on the distinction between 
> sexual orientation and sexual conduct.  CLS's rule prohibits any 
> unrepentant sexual relationships outside marriage, whether same-sex 
> or opposite-sex.  There is no classification based on sexual 
> orientation. There is no disparate impact; there no are no doubt many 
> more Hastings students in sexually active opposite-sex relationships 
> than in sexually active same-sex relationships.
>
> It is true that the opposite-sex couples could legally get married, 
> and the same-sex couples could not, but that has little relevance to 
> the unmarried opposite-sex couples, who are unmarried for a reason:  
> they are finanically or emotionally unprepared for marriage, or not 
> yet ready to settle down, or commit, or whatever.  Most of the 
> same-sex couples are probably int he same situation in addition to 
> being legally unable to marry.  Anyone who is having sex and for 
> whatever reason isn't married is excluded by the CLS rule.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.
>
>
>

  

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713___
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Re: Factual Clarification re CLS

2010-05-10 Thread Hamilton02
 
David-- I agree with your point here, and would note that it sounds just  
like the defense in Loving v. VA.

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


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

2010-05-10 Thread David Cruz
I'm not sure my understanding of the CLS policy agrees 100% with Doug's.  
Whether or not you call it a disparate impact, I believe there is what groups 
like Lambda have been litigating as an insurmountable obstacle faced by 
same-sex couples that different-sex couples don't face.  My understanding was 
that the CLS policy excluded people who were not in what CLS considered a 
biblical marriage; that is, I thought CLS didn't care if a same-sex couple was 
civilly married in the few months it was legal in California, for example, but 
instead maintained that a same-sex relationship *couldn't be* a marriage (in 
the biblical sense) and hence same-sex couples could not ever have marital sex 
(regardless of civil law).  Thus, if I'm right, it's possible for straight 
people to be sexually active and members of CLS, but not for gay people.

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

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

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

CLS's membership policy does not turn on the distinction between sexual 
orientation and sexual conduct.  CLS's rule prohibits any unrepentant sexual 
relationships outside marriage, whether same-sex or opposite-sex.  There is no 
classification based on sexual orientation. There is no disparate impact; there 
no are no doubt many more Hastings students in sexually active opposite-sex 
relationships than in sexually active same-sex relationships.

It is true that the opposite-sex couples could legally get married, and the 
same-sex couples could not, but that has little relevance to the unmarried 
opposite-sex couples, who are unmarried for a reason:  they are finanically or 
emotionally unprepared for marriage, or not yet ready to settle down, or 
commit, or whatever.  Most of the same-sex couples are probably int he same 
situation in addition to being legally unable to marry.  Anyone who is having 
sex and for whatever reason isn't married is excluded by the CLS rule.

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Factual Clarification re CLS

2010-05-10 Thread Douglas Laycock
CLS's membership policy does not turn on the distinction between sexual 
orientation and sexual conduct.  CLS's rule prohibits any unrepentant sexual 
relationships outside marriage, whether same-sex or opposite-sex.  There is no 
classification based on sexual orientation. There is no disparate impact; there 
no are no doubt many more Hastings students in sexually active opposite-sex 
relationships than in sexually active same-sex relationships.

It is true that the opposite-sex couples could legally get married, and the 
same-sex couples could not, but that has little relevance to the unmarried 
opposite-sex couples, who are unmarried for a reason:  they are finanically or 
emotionally unprepared for marriage, or not yet ready to settle down, or 
commit, or whatever.  Most of the same-sex couples are probably int he same 
situation in addition to being legally unable to marry.  Anyone who is having 
sex and for whatever reason isn't married is excluded by the CLS rule.

Quoting "Esenberg, Richard" :

> CLS v. Martinez occurred to me too. Although there are the 
> complications of public fora analysis, it seems to me that the case 
> may begin a process of facing the inevitable conflict presented by 
> efforts to define a perspective that is still shared by a significant 
> portion of the population - perhaps even a majority - as invidious 
> discrimination. This strikes me as fundamentally different from our 
> experience with race and gender. The national (if not, in the case of 
> race, southern) consensus led, rather than trailed, the law.
>
> The difficulty of this reconciliation is reflected in the litigating 
> positions taken in Martinez. Hastings has retreated from the idea 
> that it can restrict the particular point of view expressed by CLS 
> arguing (rather fantastically in my view) that it merely wishes to 
> prohibit any student organization from excluding anyone from 
> leadership based on point of view. In Hastings' forum, cats must live 
> with dogs, Democrats must welcome Republicans, and PrideLaw must 
> accept congregants of the Westboro Baptist Church. Even if this works 
> in the context of public fora analysis (and I don't think it does), 
> it won't help in other contexts.
>
> CLS, on the other hand, says that it has no desire to exclude gays 
> and lesbians as long as they are willing to affirm that to act on 
> their sexual orientation would be a sin.
>
> To some, this is an odd distinction. When I debated CLS v. Martinez 
> with Shaun Martin at the Unviversity of San Diego Law School, he 
> referred to to it as saying "well, ... I'm not gay gay." CLS, in the 
> views of some, has simply recast an exclusion based on status as an 
> exclusion based on belief.
>
> I think Chris' hypothetical raises that issue more starkly than CLS. 
> We can imagine that some (although perhaps not many) gays and 
> lesbians might well believe that acting on his or her sexual 
> orientation would be wrong and would  be willing to affirm CLS' 
> statement of belief.
>
> But a woman who accepts Ordinatio Sacerdotalis will not present 
> herself for ordination. Viewing the exclusion as an exercise of a 
> right of expressive association rather than sex discrimination 
> effectively excludes women from the leadership position at issue.
>
> Maybe that's OK for religious organizations even if Smith has put 
> paid to the ministerial exception.
>
> But what about the secular world? What about a kinder and gentler 
> version of the Little Rascal's He-Man Woman Haters Club, say the 
> Legion for Preservation of Motherhood and the Traditional Family 
> formed to advocate for, among other things, traditional gender roles. 
> Might it say that it will only hire women who sign a statement that 
> says married women should not work outside of the home.
>
> Beyond that, could it take the postion that hiring women (or even 
> admitting them to membership meetings in the evening when they should 
> be at home with the children) would interfere with their expressive 
> message? As I recall, the Boy Scouts' policy was to exclude avowed 
> homosexuals.
>
> I guess its evident that I really don't want to start grading today.
>
> Professor Rick Esenberg
> Marquette University Law School
> Sensenbrenner Hall 321C
> 1103 W. Wisconsin Avenue
> Milwaukee, WI 53201
> (o) 414-288-6908
> (m)414-213-3957
> (f)  414-288-6975
>
>
>
>
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock 
> [layco...@umich.edu]
> Sent: Sunday, May 09, 2010 8:42 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Question About The Statutory Title VII Exception and the 
> Constitutional Ministerial Exception
>
> This questions were actually posed in Dayton Christian Schools, which 
> went off on Younger grounds in the Supreme Court in 1986.  Got a 
> hostile opinion on the merits in the Sixth Circuit.
>
> They are also lurking in CLS v. Martinez, argued Apri