The Volokh Conspiracy

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer.

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The same is true of Liberty University, Yeshiva University, Brigham Young University, and a few others. You will never be able to seriously convince me that someone can either work at or attend BYU and suddenly be surprised that the university takes its Mormon identity more seriously than it does freedom of speech. Sorry.

So I’ll address, one at a time, the different strains these arguments typically take:

1.       “FIRE gives Christian colleges a pass.”

This argument is nonsense. Here is a short list of Christian institutions we have taken on over the years. It is important to remember that these are colleges that promise free speech quite clearly in their policies:

Georgetown University: In 2010, we wrote to Georgetown three different times over its unequal treatment of student organizations, specifically its refusal to recognize the pro-choice group H*yas for Choice. We have continued to stay after Georgetown on this matter this year. Additionally, Georgetown earns our worst, “red light” rating for speech codes, in violation of its stated commitments to free speech.

DePaul University: In 2011, we named DePaul one of our “12 Worst Colleges for Free Speech” in a feature we put together for The Huffington Post. Why did DePaul receive this dubious honor? The university claims to support free speech, yet it has been involved in a handful of FIRE cases over the years, including for refusing to recognize the student advocacy group Students for Cannabis Policy Reform and for pursuing harassment charges against a conservative student group that held an “affirmative action bake sale.”

Boston College: We have written to BC three times to ask the administration to clarify whether it truly is committed to free speech (as some of its policies would indicate), or whether it places other values, including its religious identity and mission, above students’ freedom of expression. We also wrote to the university over its disinvitation of Bill Ayers in 2009.

Le Moyne College: FIRE has had two memorable cases at Le Moyne, one over the dismissal of a student newspaper advisor for not exercising more control over the paper, and the other involving a graduate student dismissed from the education program due to a “mismatch” between his personal beliefs and the goals of the education program. The latter, in fact, led to a lawsuit in which the Supreme Court of New York’s Appellate Division found in his favor and held that Le Moyne was wrong to dismiss him without the due process promised in its own rules.

We have also taken on Notre Dame  for its Red light policies as well as Holy Cross.

2.       A variation on the first argument: “FIRE leaves Christian colleges off of its list of worst schools.”

Again, we rate and take on a large number of the most highly rated Christian colleges, as long as they promise free speech. But look at the colleges that we don’t rate, from our 2012 annual report on speech codes:  “Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, the U.S. Military Academy, the U.S. Naval Academy, Vassar College, Worcester Polytechnic Institute, and Yeshiva University. Bard College, which was not rated in previous years, chose this year to dramatically expand its stated commitments to free speech.” Did you catch all that? There are TWO Christian colleges on the list.Two. The others are secular, Mormon, Jewish, technical, and military schools, and one liberal arts college. (For the record, we do not rate the military academies because the U.S. Supreme Court has held that First Amendment protections do not apply in the military to the same extent they do in civilian life.)

3.    “FIRE doesn’t care about free speech because it doesn’t list Liberty and BYU among the ‘worst colleges for free speech.’”

Again, kind of a riff on the first two, but in the accusers’ minds this accusation somehow makes it safe to ignore everything FIRE says. People who make this argument, however, miss three things: freedom of association, informed consent, and contracts. You have both the right to form and the right to join associations that do not make free speech a high priority and place other values above it. So, for an early Thanksgiving example, Pilgrims have the right to start up an oppressive, speech-restrictive Pilgrim University. And if they are clear about their oppressive policies, a student can give informed consent to be governed by their rules in order to attend Pilgrim U. If Pilgrim U then oppresses a student, the student has no one to blame but him or herself.

The good news for free speech fans is that there just isn’t a huge market out there for colleges that don’t provide students and faculty with free speech and academic freedom. True, those who are happy to forgo their academic freedom and free speech rights in order to be in an environment that prioritizes other values are more often than not religious individuals, but it’s worth noting that these folks are the exception. That’s why we end up with only 9 “not rated” universities out of the roughly 400 that FIRE surveys.

The special fixation on Jerry Falwell’s Liberty University has always been somewhat amusing to me, because even if it did provide free speech guarantees, it still would not make it into our list of colleges because it’s not highly rated enough to fit within our criteria for rating a college.

4.    Finally, there is the sort of meta-argument of “Well, I just know that FIRE is in the bag for the Christian right because they defend them.”

It’s a suspicion I am tired of, frankly. I am a liberal-leaning atheist in an organization that was founded by two atheists, and I have proudly defended the rights of (among many others) evolutionary biologist Richard Dawkins to speak at the University of Oklahoma, a student at Washington State University to put on a play mocking the Passion of the Christ, students who wished to form a gay and lesbian group at Hampton College, and students at the University of Maryland who wanted to show an X-rated film at a campus event. The funny thing is that we get the “hey, you’re one of THEM” attacks from both sides. When I started as president of FIRE back in 2006, we got some very concerned emails from Christians afraid of this new “ACLU liberal” becoming the head of FIRE.

FIRE’s position on private colleges is certainly not a matter of convenience; indeed, many people either do not understand it—or like to pretend they don’t understand it, so they don’t have to take seriously the hundreds of examples of violations of student and faculty rights we have fought and won over the years. FIRE’s position on this gets flack from some conservatives who think we should leave private colleges entirely alone under all circumstances, and from some liberals who think BYU should not be allowed to be so, you know, Mormon. But we’ve chosen our position because we believe it is the right one not only under constitutional principles, but under the principles of how to run a genuinely pluralistic society. And, by the way, this approach maximizes the protections of freedom of speech by holding the overwhelming majority of top private colleges to their promises of free speech, while recognizing the importance of freedom of association and allowing for the reality that some people really would prefer to be at a college that has a greater allegiance to the teachings of St. Paul, Mao, Mohammed, or what have you.

I realize it’s much simpler and easier to use BYU or Liberty as an excuse to ignore FIRE’s advocacy. I also realize that doing so is tempting to some because it aligns with their suspicions and paranoias. It’s more complex to engage in the hard work of understanding the difference between one type of school and another type when it comes to their missions, identities, and historical practices. It’s also more accurate. And ultimately, more rewarding.

When I blogged about the Roommates.com case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one’s choice of roommates is legal, it would also be legal to advertise a discriminatory preference.  I suggested that this wasn’t so clear.  Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association.  But here is what HUD’s website has to say:

It is illegal for anyone to

• Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v. Roommate.com.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually withdrawn because of a related controversy over what was seen as HUD’s overly vigorous interpretation of what constituted discriminatory advertising.)

It’s not clear that HUD’s position has changed.  Judge Kozinski points out that HUD recently dismissed a claim against a woman who advertised for a Christian roommate on a church bulletin board based in part on the unique context of the ad, but it’s not clear that HUD would take the same position about an ad seeking a white roommate published in the Washington Post classifieds.

As I discuss in You Can’t Say That!, I think that as a policy matter people should be able to advertise discriminatory roommate preferences.  Beyond standard libertarian concerns, banning such advertisements doesn’t actually decrease discrimination, it just imposes costs all around, not least on, e.g., a black individual seeking housing who winds up traveling to meet various potential roommates who will inevitably turn him down.  Meanwhile, the people who will be most affected by an advertising ban will be members of small minority groups who will have difficulty satisfying their roommate preferences if they can’t advertise them.  It’s easy enough to find a white or black roommate in Washington, DC, but what if you are a Gay Hispanic Republican, seeking the same (discrimination based on political affiliation is banned in DC)?  The counter-argument, of course, is that allowing discriminatory advertising creates dignitary harms to members of disfavored groups and “normalizes” the public expression of discriminatory housing preferences.

Given my Gay Hispanic Republican example, if I were a judge I’d likely be sympathetic to the argument that bans on advertising discriminatory preferences puts too great a burden on the exercise of intimate association rights to be constitutionally permitted. Whether precedent supports such an argument, however, is not clear.  I expect that the next major case against an entity like Roommate.com will need to take up this issue.

Fair Housing Council v. Roommate.com (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that.

Ilya blogged about this lawsuit when it was filed, so I thought I’d note that today the Eighth Circuit allowed the lawsuit to go forward, “revers[ing] the district court’s grant of summary judgment based on qualified immunity.” Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. “Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment.”

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more.

As I noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs’ motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series (“GSWS”) were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination (“WLAD”). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA’s decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648-59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.

Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA’s First Amendment rights under the Dale test could be conclusively decided. The Court now considers that final question: does NAGAAA’s interest in expressive association outweigh the state interest in eradicating discrimination? ...

In the previous Order, wherein the Court determined that NAGAAA was an expressive association, the Court did not find an explicit formulation of the message NAGAAA intended to express. Instead, the Court found that NAGAAA communicated a mission and a purpose through its literature that fell easily within the standards that the Supreme Court had set for an expressive association. Now, however, NAGAA has made its intended message explicit: ...

Continue reading ‘More on the Gay Athletic Group’s First Amendment Right to Limit the Number of Straight Players on a Team’ »

Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.

Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there’s a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)

Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can’t be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant’s explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can’t do. “We prayed, and we feel God told us to hire one applicant rather than another” is an argument that’s hard for secular courts to reasonably evaluate.

More broadly, a church’s decision about who is to speak for it is a foundation for the church’s ability to promulgate its teachings the way church members or leaders want to see them promulgated. For all these reasons, courts have generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

The main question in Hosanna-Tabor is how far this “ministerial exception” to antidiscrimination law extends to employees who aren’t primarily ministers in the sense of people who perform the sacraments or preach sermons. In Hosanna-Tabor itself, the employee was a schoolteacher who taught some religious subjects (but not exclusively religious subjects), and who was herself a member of the clergy, in a job category where clergy members were preferred as teachers (though the church at times hired non-clergy for the task as well). [UPDATE: To quote the petitioner's brief, "Perich taught religion classes four days a week, led students in prayer three times a day, led students in daily devotional exercises, and attended a school-wide chapel service with her students every week."]

I was happy to sign on to an amicus brief in the case that proposed a rather broad definition of the ministerial exception; it’s the amicus brief that is chiefly on behalf of the National Council of the Churches of Christ, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society, drafted by Profs. Rick Garnett, Tom Berg, Carl Esbeck, as well as K. Hollyn Hollman and Melissa Rogers of the Baptist Joint Commitee and Kim Colby of the Christian Legal Society. If you’re interested in the case, have a look at the brief, or at the other briefs, collected by SCOTUSblog. (For part of my thinking about why the ministerial exception is sound even after Employment Division v. Smith, see this section of my A Common-Law Model for Religious Exemptions article, though I think one could supplement that with arguments based on the Establishment Clause and the freedom of expressive association.)

UPDATE: I originally said, in the second paragraph, “As I understand it, some streams of Judaism insist that a rabbi be ethnically Jewish, and exclude converts to Judaism,” but it now appears that I was mistaken, so I deleted the sentence. The removal of this example doesn’t change the analysis.

The case is Alpha Delta Chi-Delta Chapter v. Reed (9th Cir. Aug. 2); the opinion basically agrees with Justice Stevens’s concurrence in Christian Legal Society v. Martinez, which took the same view. The Christian Legal Society majority held only that a policy that recognized groups must take all comers — with some modest exceptions — is constitutional. But the logic of that opinion does suggest that policies which simply require groups not to discriminate based on race, religion, sex, sexual orientation, and so on would likewise be constitutional, if they are applied evenhandedly to all groups.

The court did note, though, that such a policy may not be applied in a deliberately discriminatory way:

In this case, Plaintiffs also offer evidence that San Diego State has granted official recognition to some religious student groups even though those groups, like Plaintiffs, restrict membership or eligibility to hold office based on religious belief. For example, the Catholic Newman Center’s application for official recognition by San Diego State provides that its officers must be “members, in good standing, with the Catholic Church.” Further, some non-religious but officially recognized groups appear to discriminate on prohibited grounds, in contravention of the policy. For instance, the African Student Drama Association’s constitution limits its leadership positions to students from Africa.

[T]he evidence that some student groups have been granted an exemption from the nondiscrimination policy raises a triable issue of fact. We note that Plaintiffs’ characterization of the evidence may not be correct. For example, it is possible that these groups were approved inadvertently because of administrative oversight, or that these groups have, despite the language in their applications, agreed to abide by the nondiscrimination policy. But as it stands now, the record does not adequately explain why some official student groups at San Diego State appear to have membership requirements that violate the school’s nondiscrimination policy. We therefore reverse in part the district court’s grant of summary judgment in favor of Defendants on Plaintiffs’ free speech and expressive association claims. We remand for consideration of the question whether San Diego State has (1) exempted certain student groups from the nondiscrimination policy; and (2) declined to grant Plaintiffs such an exemption because of Plaintiffs’ religious viewpoint.

The court’s decision strikes me as correct, for reasons given in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006). Judge Ripple’s concurrence did point out that bans on religious discrimination by student groups do pose special problems for such groups that aren’t shared by nonreligious groups:

Continue reading ‘Ninth Circuit Panel Holds that University Antidiscrimination Policy May Be Applied to Religious Groups, But Only If It’s Applied to Other Groups’ »

Relevant excerpts from this ordinance and this one:

The Mayor of the City of Gould shall not call special meetings to discuss City business without two thirds of the City Council’s vote to do so.

The Mayor nor City Council members shall attend or participate in any meetings with any organization in any location without City Council approval by two thirds [vote].

The Gould Citizens Advisory Council by passage of this ordinance is hereby banned from doing business in the City of Gould.

That the said Council is, in effect, causing confusion and discourse [sic] among the citizens of Gould and as a result is contributing to the friction not only between the Mayor and Council but also among the citizens who deserve a cooperative government.

[N]o new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council.

And a quote from a backer of the ordinances, Councilwoman Sonja Farley:

“In everything, you have somebody in control over it. In everything,” said Council Member Sonja Farley.

Farley says no matter the group, if you discuss the city at all, the meeting must be approved by the city council.

“You couldn’t just come in here and get with four people and decide you want to start an organization,” said Farley. “You will go through your city council with documentation, the right paperwork and get an approval.”

Wow. I mean, wow. Thanks to Josh Blackman for the pointer; see also this story, with a quote from Prof. (and Dean) John DiPippa. Did I say, “wow”?

From Apilado v. North American Gay Amateur Athletic Alliance, 2011 WL 2148816 (W.D. Wash. May 31):

This case arises from the disqualification of a softball team from the 2008 Gay Softball World Series (GSWS). The event was operated by Defendant North American Gay Amateur Athletic Alliance (NAGAAA) and attended by Plaintiffs Steven Apilado, LaRon Charles, and Jon Russ. The Plaintiffs’ team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta league filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team.

Rule 7.05 states that “[a] maximum of two Heterosexual players are permitted on a GSWS roster.” Penalties for violation of this rule include permanent suspension of the heterosexual player, disqualification and forfeiture of the offending team’s games, one year’s suspension of the team’s manager, and a minimum $100 fine imposed against the team’s association. Under Softball Code Section 1.15, Gay means “having a predominant sexual interest in a member or members of the same sex and includes both gay men and lesbians.” Softball Code Section 1.18 defines heterosexual as “having a predominant sexual interest in a member or members of the opposite sex.”

The Softball Code also establishes a mechanism for enforcing rule 7.05: the protest hearing. Rule 8.04 states that a protest can be filed by the manager of the opposing team, an open division director, or an association’s commissioner. Rule 8.06 establishes the procedure for these hearings: a protest committee convenes, the protest committee chairperson begins the proceedings by explaining the procedures, the protesting party explains the basis for the protest and presents any available evidence, the protested party has an opportunity to rebut the argument, the protest committee may interview players, and the protest committee conducts a vote by secret ballot to determine the outcome.

D2 lost the championship game. When it was over, NAGAAA’s protest committee conducted a hearing. Upon conclusion of the hearing, the protest committee determined that Plaintiffs were “non-gay,” and, therefore, that D2 was not eligible to compete in GSWS. The protest committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that Plaintiffs be suspended from NAGAAA softball play for one year.

[The Court finds] that NAGAAA is a “public accommodation” under Washington’s Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60 et seq., and that NAGAAA unlawfully discriminated against Plaintiffs [in violation of this law] based on their actual or perceived sexual orientation ..., but that the First Amendment protects [NAGAAA’s] right to exclude those whose membership would negatively impact their expressive activity.... The first part of this Order [thus] holds that Defendant has a constitutional right to exclude anybody who does not share in its values....

The second part of the Order holds that Plaintiffs did not show a real and immediate threat of repeated harm [from the supposedly intrusive way in which the policy was applied -EV] because their injury resulted from the manner in which the written policy was applied, not from the language of the policy itself. [Text moved: The alleged events that led to Plaintiffs' injuries -- the protest committee asking personal and intrusive questions in front of approximately twenty-five delegates and observers, repeating votes until a verdict of "non-gay" was reached, and widely publicizing the verdict -- cannot be directly traced to the written policy.] It did not appear to the Court that Plaintiffs were arguing that they were injured simply because NAGAAA adopted particular definitions of gay and straight, but rather because NAGAAA inquired into Plaintiffs’ sexual orientation in a way that was intrusive and disrespectful. Accordingly, the Court’s analysis is confined to the allegedly intrusive questioning, not the definitions of gay and straight.... Defendant could still be liable for its actions [in the questioning]. In a recent case, the Supreme Court looked to the activities of the Westboro Baptist Church, a virulently anti-gay group who display hateful signs at soldiers’ funerals. Snyder v. Phelps. The Court concluded that the First amendment does not protect all speech from claims of intentional infliction of emotional distress or invasion of privacy. Whether or not Defendant’s treatment of Plaintiffs at the protest hearing is deserving of First Amendment protection remains to be seen....

Here’s the “[p]olicy addition to take effect August, 2011″, which was specially referenced in a campus-wide e-mail sent by the administration:

Wesleyan students are prohibited from using houses or property owned, leased or operated by private societies that are not recognized by the University. This prohibition includes using such houses or property as residences, taking meals at such houses or property and participating in social activities at such houses or property.

Pretty stunning; sounds like a return to the days when universities were seen as acting “in loco parentis” to students (who were at the time treated as underage, since the age of majority throughout the country was mostly 21). And of course the policy is remarkably broad: Eating dinner at a local Italian-American society, going to a party at a church, going to social/political events put on by political or ideological groups, and so on would all qualify. Yow.

The rule seems to be motivated by criminal activities at a local fraternity: underage drinking, and a reported rape. But the customary, and in my view essentially adequate, way of dealing with the risk of off-campus crime is criminal punishment for the crime, plus possibly school discipline for the accused criminals. (The discipline might even apply to people before they are convicted, or even if they aren’t convicted: A school need not feel bound, for instance, by the criminal law requirements of proof beyond a reasonable doubt, and may conclude that the fact that there’s a 75% chance that a student is a rapist is reason to expel him even if it isn’t enough to imprison him.) A preventative rule of such breadth and intrusiveness is going way too far in trying to deal with the danger of crime, however real.

Wesleyan is a private university, and is not legally barred from imposing such rules; nor does this rule seem like it undermines academic freedom principles that should bind the university as a matter of professional ethics. But the rule still strikes me as silly, and sure to be discriminatorily enforced; Wesleyan deserves to be criticized for it.

Thanks to FIRE for publicizing this.

From the Department of Housing and Urban Development’s Determination of No Reasonable Cause in Fair Housing Center of West Michigan v. [Redacted] (paragraph break added):

[A]n individual complained to Complainant about a rental advertisement posted on a bulletin board at the [Redacted] Church ... stat[ing] (in relevant part): “I am looking for a female christian roommate....” ...

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing.

However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

I’m happy to see that the Department acknowledged that there were constitutional constraints here, though I’m not sure exactly what it understood the constitutional limits to be. The Fair Housing Act generally allows a person to discriminate based on race, religion, and the like in choice of roommates, at least if the person is the “owner,” see 42 U.S.C. § 3603(b)(2); but it still bars “any notice, statement, or advertisement ... that indicates” such a lawful preference.

One could argue that this prohibition, as applied to roommate selection, interferes with First Amendment rights to promote a lawful commercial transaction. One could argue that it unduly burdens the right to intimate association, since it makes it much harder for someone to effectively choose whom to live with (though it doesn’t outright prohibit such selection). And one could argue that it unduly burdens the right to associate for purposes of creating a religious household, though I’m not sure that there is much precedent for recognizing a right defined in that specific way. I discussed the first two theories, and also talked about government agencies that were more willing to restrict such constitutional rights, in this 2007 post.

In any event, I’m glad that HUD recognizes some constitutional constraints here, even though it declined to clearly explain just what they are. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

A newly filed case, Bluman v. FEC, challenges 2 U.S.C. § 441e, which provides:

It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution ... in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication ....

(b) ... As used in this section, the term “foreign national” means ... an individual who is not a citizen of the United States ... and who is not lawfully admitted for permanent residence ....

Plaintiffs say they live in the U.S. and have visas that let them work at a particular place, though they aren’t permanent residents (a status that would let them work anywhere). People with such visas (or with student visas) may often live legally in the U.S. for many years without becoming permanent residents or citizens. Generally speaking, they have the same First Amendment rights as citizens (at least when it comes to criminal or civil liability for speech); the question whether that also extends to (1) the right to contribute to candidates or parties, and (2) the right to make independent expenditures in support of or opposition to candidates. Prof. Rick Hasen (Election Law Blog) has more.

Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:

I had a mischievous thought, which I thought I would offer to your blog:

I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9-11 zone be open to “all comers, without discrimination based on status or belief.” We have it on good authority that this is a neutral policy, violating no one’s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting “tolerance” and “diversity” — without having to put up with those pesky Muslims. Who could possibly object?

UPDATE: Note that the “suggestion” (which is of course a criticism of the Court’s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions.