The Volokh Conspiracy

Also from the General Social Survey, though this time with a question that was only asked in 2008 and 2010, yielding a total of 2500 respondents:

“Now consider a Muslim clergyman who preaches hatred of the United States. If such a person wanted to make a speech in your community preaching hatred of the United States, should he be allowed to speak, or not?”

• Liberal — 52% yes, 48% no.
• Moderate — 38% yes, 62% no.
• Conservative — 39% yes, 61% no.

Here, the difference is considerably greater than as to anti-religious speech and speech claiming blacks are genetically inferior — discussed here — though it’s still in the same direction of liberals being more in favor of speech protection.

UPDATE: I originally accidentally typed “52% yes, 38% no” for liberals; I meant to say, “52% yes, 48% no.”

Here’s data from the General Social Survey, limiting the years to 2000, 2002, 2004, 2006, 2008, and 2010 (with nearly 8000 total responses for each question), with respondents self-identifying as liberals, moderates, and conservatives. (I have flattened out the gradations within each category — extremely liberal/conservative, plain liberal/conservative, slightly liberal/conservative — partly because otherwise some of the cell sizes become small enough that the margin of error gets quite large.)

“There are always some people whose ideas are considered bad or dangerous by other people. For instance, somebody who is against churches and religion... a. If such a person wanted to make a speech in your (city/town/community) against churches and religion, should he be allowed to speak, or not?”

• Liberals — 83-17% yes.
• Moderates — 76-24% yes.
• Conservatives — 75-25% yes.

“Or consider a person who believes that Blacks are genetically inferior. a. If such a person wanted to make a speech in your community claiming that Blacks are inferior, should he be allowed to speak, or not?”

• Liberals — 67-33% yes.
• Moderates — 58-42% yes.
• Conservatives — 62-38% yes.

So looking at the public at large, liberals support protection both for racist speech and anti-religious speech more than conservatives do, though the gulf is not wide. Similarly, when the question is whether “such a person [should] be allowed to teach in a college or university,” liberals are likewise somewhat more likely to say yes, both as to the anti-religious person (72-38% liberal, 60-40% moderate, 57-43% conservative) and the person who believes blacks are genetically inferior (53-47% liberal, 47-53% moderate, 47-53% conservative).

Ahram Online reports:

A complaint was filed with the prosecutor general on Sunday by forty Egyptian lawyers, accusing renowned reform campaigner Mohamed ElBaradei of offending Islamists, of being against Islamic sharia law and of having insulted prominent Islamist preachers.

According to Ahram Arabic news website, the complaint was based on statements made by the founder of the Constitution Party against last Friday’s protest, which called for the implementation of Islamic sharia law in Egypt....

The complaint claims that ElBaradei, during a press conference held on Friday in Aswan, Upper Egypt, described some religious preachers as “clowns” and “merchants of religion”....

Note that this is just a complaint seeking a prosecution; to my knowledge, this need not turn into a prosecution unless the prosecutor general agrees. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The bill seems to be specifically aimed at Sharia courts; here’s a Telegraph (UK) story, a pointer to the House of Lords debate, and to the Parliament Web page on the bill, which in turns points to the text. The particular prohibitions in the English proposal would include:

(a) treating the evidence of a man as worth more than the evidence of a woman, or vice versa,

(b) proceeding on the assumption that the division of an estate between male and female children on intestacy must be unequal, or

(c) proceeding on the assumption that a woman has fewer property rights than a man, or vice versa.

I blogged two years ago about the general question of sex-discriminatory rules in religious arbitration, whether Muslim or Jewish, and whether arbitral decrees issued by tribunals that follow such rules are enforceable — an interesting question, as is the question of whether and to what extent some Jewish Beth Dins in practice employ sex-discriminatory rules as well.

Note that arbitration — or at least binding arbitration — is a process under which two parties agree to have their dispute resolved by an arbitral body that they select, and then the arbitral body’s decision becomes enforceable in a country’s general court system (subject to various limits on enforceability of contracts, e.g., that you can’t contract to have your hand chopped off as a penalty, that a contract can’t resolve the rights of third parties, such as children in a child custody dispute, etc.). A classic commercial arbitration would be if A and B agree in their contract (an ordinary business deal, an employment agreement, a consumer-seller agreement, and so on) that any disputes under the contract are to be resolved using some named arbitration organization. Most such arbitration agreements do not use religious arbitrators, and the arbitrators purport to apply ordinary law (e.g., California law, French law, etc.) and not religious law.

But some agreements provide for religious arbitration, often using religious officials as decisionmakers and calling for the application of religion law. A church, for instance, could provide in its employment agreements that employment disputes are to be resolved using Christian arbitration. Orthodox Jews often specify in their business agreements that any disputes are to be resolved using Jewish Beth Dins, which would apply Jewish law. Likewise, Jews and Muslims sometimes use religious arbitration to resolve disputes related to property settlements in divorce, whether the agreement to arbitrate comes before the marriage or at the time the divorce is being contemplated.

Naturally, in many arbitration agreements, as in many contracts more generally, some people are skeptical about whether the parties’ consent to the agreement was “genuine” or whether it was unduly “pressured.” American law generally takes quite a lot to invalidate a contract or an arbitration agreement on the grounds that the parties consented under pressure; among other things, many business transactions involve a party who might need the agreement in order to survive in business, but the economic pressure exerted by this economic reality generally doesn’t suffice to invalidate the agreement.

The question in England right now, as I understand it, is whether to bar such arbitration in “family law” cases (which presumably would include property settlement cases), and whether to require sex-neutral rules in other cases where arbitration has been agreed to. But I’d love to hear more from English lawyers who know more about specific English legal rules that might bear on this — e.g., am I right in assuming that the “family law” arbitration prohibition would extend to arbitration of property settlement disputes? — and also about how likely this is to be enacted.

In particular, I’m curious about whether this law would affect arbitrations related to wills in which (a) the testators provide that sons get a bigger share than daughters, or (b) the testators provide that the will is to be interpreted according to Islamic law (e.g., as in this case, which calls for giving sons a bigger share than daughters. Would arbitral bodies be prohibited from giving more to sons than daughters under such wills? Or would that just not be covered, because the rules would be seen as effectuating the testator’s intent — testators in England, I take it, are free to discriminate among their children — and that the specific prohibition of clause (12)(b) applies only to intestate succession and not to distribution under a will?

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Here’s the story, from the AP:

Ikramullah Shahid, a former Pakistani legislator, has offered a $200,000 (£123,800) bounty for anyone who kills the maker of an anti-Islam film that has angered Muslims around the world.

He made the offer at a rally on Monday in the northwestern city of Peshawar, before a crowd of about 15,000 people....

This is the second such offer made by someone in Pakistan. A federal cabinet minister [Ghulam Ahmad Bilour, the railways minister] earlier offered $100,000 [from his own pocket] for the man behind the American-made film that portrays Islam’s Prophet Muhammad as a fraud, womanizer and child molester....

Say an American was angered by this speech — understandably so — and offered a $100,000 bounty to anyone who killed Mr. Shahid and Minister Bilour for what they said. Or even if you want to control for Bilour’s being a sitting government official (which in my view is an aggravating factor, not a mitigating one), say that the bounty was only for Shahid. How would the Pakistani government demand that the American government act? Why should we demand any less of the Pakistanis?

To be sure, I don’t want to suggest that solicitation of murder (which leads to the American bounty in my hypothetical) is equal in gravity to blasphemy (which led to the real Pakistani bounty) — it’s much worse, which suggests that we should be even more insistent in the real case than the Pakistanis would be in the hypothetical.

RT.com reports:

Rock opera Jesus Christ Superstar has been pulled before a performance in the Russian city of Rostov-on-Don following complaints from Orthodox Christians. The believers claim the production is in breach of a controversial new religious offense law.... “In our view the image of Christ presented in the opera is incorrect. If they want to stage a play about the life of the Savior, they should first clear it with the local church authority,” one of the offended believers told Life News....

The religious offense law was drafted in the wake of performance group Pussy Riot’s “punk prayer” in Moscow’s central cathedral earlier this year.... The bill calls for up to three years’ imprisonment for disrespecting religious sensibilities and is currently being discussed in the Duma.

The city’s administration has instructed the local theater to stop selling tickets for the production....

Despite the apparent success of the current attempts to ban the play, the local church does not actually appear to support the complaints....

Though the story says that the claim is that the production violates a new law, at this point it looks like the law is only under consideration (as the story itself acknowledges); the precise basis for the city’s order is thus not clear. The BBC reports that the play had been performed in Russia for decades. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

So says a County Attorney’s declaration filed on May 22, 2012 in a federal case challenging the polygamy ban on constitutional grounds:

The policy, as officially adopted by the ... County Attorney’s Office, states:

Prosecution of Bigamy Crimes:
The ... County Attorney’s Office will prosecute the crime of bigamy ... in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentations or missions; or (2) When a person purports to marry or cohabits with another person ... and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy ... regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud....

This policy is intended, under the prosecutorial discretion exercised by this Office, to prevent the future prosecution ... of bigamous marriages entered into for religious reasons.

“Bigamy” is the name of the state law offense that would on its face include what is often called “polygamy,” which is to say one person living with multiple people as spouses (even if not legally recognized as spouses), with everyone knowing what’s going on: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” (“Cohabit” is understood to mean to “live together as husband and wife,” 153 P.2d 647 (1944).)

I think polygamy bans are a bad idea: If adults live together in a polygamous household, viewing themselves as married under their own religious laws or cultural conventions but not deriving any state-law recognition or benefits (beyond that given to the initial, legally valid two-person marriage), I don’t think the government should step in. But in any case, I thought this development might be of interest to our readers.

You’d think that there wouldn’t need be a court case deciding this, but now there is, Myers v. City of Chicago (N.D. Ill. Sept. 12, 2012).

The question was whether a fraternity could qualify for a special zoning rule applicable to a “convent or monastery,” defined as housing for “persons (such as nuns or monks) under religious vows.” The court said no, despite the argument that the fraternity’s mission statement — “In the Service of God and Man” — was a “religious vow[]” that the fraternity members took. Whether it’s permissible for the government to preferentially exempt religious (but not secular) group living from zoning restrictions is a different question, which apparently wasn’t raised by the plaintiff. Under current law, the answer is probably that such preferential exemptions do not violate the Establishment Clause, see Cutter v. Wilkinson (2005).

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

On Monday, September 10, during the lunch hour, I’ll be presenting “The Conservative Case for Gay Marriage” at the Notre Dame Federalist Society.  Professor John Finnis will respond.

From The Jerusalem Post:

Egged [the largest bus company in Israel] and the company in charge of bus advertisements have decided that rather than be forced to put up ads with women in Jerusalem due to court action claiming discrimination against the gender, they will remove all people — both men and women — from the bus advertisements.

Starting August 1, Cnaan Advertising quietly removed all persons from their bus advertisements in the capital. The policy was clearly laid out in a letter from Egged to Cnaan obtained by The Jerusalem Post: “In the Jerusalem area there will be no images of people at all, though in other parts of the country it will be possible to use such images,” the letter from July 31 stated.

Cnaan, the company responsible for the bus ads, claims that haredi [ultra-Orthodox-Jewish -EV] extremists have defaced buses with paint and stones and even set an empty bus on fire because of ads featuring images of women they deemed “immodest.” Cnaan refused to run any advertisements with women, claiming that it will cause the company financial damage, and activists accused the company of discrimination against women. After the Transportation Ministry said it would refuse to work with any companies that discriminate based on gender on July 11, legal advisers from Egged and Cnaan decided the best course of action would be to remove any people from bus advertisements....

Whether the government was right in refusing to work with the company unless it treated ads depicting men and ads depicting women equally is a separate question. But while the company decided not to run ads depicting men because of the threat of government action, it’s clear that the company decided not to run ads depicting women because of the fear of thuggery by religious extremists. I sympathize with the company’s predicament, but the bottom line is that the thugs won: Their threat of vandalism and arson has led to the suppression of speech that they dislike.

And when thugs win, that provides more incentive for thuggery, not just by thugs of this ideological stripe but by others as well. It seems that there is serious peril for Israeli democracy and liberty here, and a serious need to do something about this sort of religious extremism that is willing to enforce its censorship schemes not just by social pressure but by criminal attack.

Thanks to Opher Banarie for the pointer.

The woman — who worked for a Burger King franchisee — sought an exemption from the employer’s uniform dress requirement, and the employer apparently refused to give the exemption; see the complaint for details.

Judging by the complaint, and assuming its statement of facts is correct, the EEOC likely has a good case. As I noted before, an employer must give religious employees special exemptions from generally applicable job requirements if the requirements interfere with an employee’s sincerely felt religious obligations and such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The EEOC and most lower courts have agreed that this applies not just to religious objectors but also people who have “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” 29 C.F.R. § 1605.1 (adapting the Welsh v. United States standard). See, e.g., Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986).

And granting an exemption from uniform requirements is generally not seen as creating an undue hardship, unless the employee’s proposed dress is likely to pose a safety risk (improbable here) or if the employer is an entity such as the police, where public confidence in the employer’s impartiality is seen as being undermined by an exemption (again, not applicable here).

In past discussions, especially about the Oklahoma foreign law ban and about similar proposals in other states, some people have questioned why American courts would want to look at foreign law. Yesterday’s Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012) offers an excellent example. The facts:

On August 1, 2000, wife [Tahira Naseer] married Nasir Mehmood Khan in Pakistan. On June 12, 2001, Khan told wife three times that he divorced her pursuant to Islamic law. In Pakistan, this is considered the religious component to a divorce. Then, the parties have to obtain a legal divorce. Once the husband pronounces the divorce, he gives notice to the local government, known as the Union Council, and the wife receives a copy. The Union Council gives notices to both parties to try to reconcile. After ninety days, if there is no reconciliation between the parties, the Union Council issues a certificate confirming the divorce. In this case, wife and Khan did not give notice to the Union Council to start the process to receive a legal divorce in Pakistan. Wife assumed she was divorced after Khan said that he divorced her three times.

On January 26, 2003, wife and husband [Hamid Moghal] married in Pakistan, and on July 4, 2004, had a subsequent marriage ceremony in Fairfax County, Virginia. Wife did not tell husband that she had been previously married. She indicated on their marriage certificate that this was her first marriage. Husband and wife separated on November 18, 2009.

On December 3, 2009, husband discovered a marriage certificate from wife’s first marriage. He took the document with him on his trip to Pakistan, where he learned that wife never obtained a legal divorce from Khan. The Pakistani authorities issued an arrest warrant for wife and charged her with bigamy. Wife filed a Suit for Declaration in Pakistan, and on July 19, 2011, the Pakistani court finalized the divorce between wife and Khan.

On February 22, 2011, husband filed a complaint for annulment, alleging that wife committed bigamy by marrying husband while she was still legally married to Khan. Wife filed an answer and counterclaim for divorce. On January 17, 2012, the trial court heard evidence and argument from the parties and granted the annulment.

In the process, the trial court heard from experts on Pakistani law, accepting the testimony of husband’s expert — a Pakistani lawyer — who “testified that in order to be divorced in Pakistan, a person had to obtain a legal divorce, not just a religious divorce” and rejecting the testimony of wife’s expert (not a Pakistain lawyer) who “testified that based on Islamic law, wife was divorced and that Islamic law controls.” The Virginia Court of Appeals deferred to the trial court’s judgment about the experts’ credibility, and concluded:

“A marriage entered into prior to the dissolution of an earlier marriage of one of the parties” is prohibited. [Va.] Code § 20–38.1(1). ["]When a marriage is alleged to be void or voidable for any of the causes mentioned in §§ 20–13, 20–38.1, 20–45.1 or by virtue of fraud or duress, either party may institute a suit for annulling the same; and upon proof of the nullity of the marriage, it shall be decreed void by a decree of annulment.["] Code § 20–89.1(a). The burden of proof in an annulment case based on bigamy is “clear and convincing.” Rahnema v. Rahnema, 47 Va.App. 645, 665, 626 S.E.2d 448, 458 (2006)....

The trial court found that the testimony of husband and his witnesses was more credible than the testimony of wife and her witnesses.... Husband carried his burden of clear and convincing evidence to prove that wife had not obtained a legal divorce from Khan before she married husband. Therefore, the marriage between husband and wife was bigamous. The trial court did not err in granting husband an annulment.

Note what happened here:

1. Under Virginia law, if A marries C while A is still married to B, the A-C marriage is void, and C can get it annulled.

2. Virginia courts naturally decide annulment questions using Virginia law.

3. But many Virginians came to Virginia from other places, including other countries. Virginia law therefore provides that, for purposes of Virginia law, whether an out-of-state marriage or divorce is valid is determined by the law of the place where the marriage or divorce took place (at least when that place was also the place of residence of the parties). To my knowledge, all American states apply a similar “choice of law” rule to marriage and divorce questions.

And that’s because such a rule is sensible: If you need to find out whether someone who had lived in Pakistan (or Germany or Canada) was properly married or divorced in Pakistan (or Germany or Canada), you naturally can’t expect them to have gone through the proper Virginia formalities at the time — perhaps when they weren’t even planning to move to Virginia. The best you can do is figure out whether they were properly married or divorced under the law of the place where the marriage or divorce happened.

To be sure, some out-of-state marriages and divorces might be contrary to Virginia public policy, and won’t be recognized in Virginia even if they are recognized elsewhere. Polygamous marriages probably qualify. But that’s the exception, not the rule.

4. So to determine, under Virginia law, whether the Naseer-Moghal marriage was valid, the Virginia judges had to decide whether Naseer was still married at the time, which required them to determine whether Naseer had divorced Khan (whom she had undoubtedly married) under the law of Pakistan. That’s not because Pakistani law is somehow being forced on Virginia. Rather, it’s because Virginia chooses to apply such law, in an attempt to better manage the lives of its residents, who come from all over the world.

5. Naturally, Virginia judges might not know much about Pakistani law, which is why the parties call experts on the subject, and the trial judge decides whom to believe. (In some situations, the judge could also consult treatises on the matter.) This is an imperfect process, but it’s generally reliable enough.

6. In this instance, the judge concluded that Pakistani law imposed requirements beyond those required by religious law. But Virginia law calls for application of the foreign law in such a situation, whether the foreign law is based partly on religious law, entirely on religious law, or not at all on religious law. If it turns out in a later case that under the law of some other country, a religious ceremony (say, one conducted consistently with Sharia law as understood within that country) suffices to produce a legally recognized divorce — or, in a different case, a religious ceremony suffices to produce a legally recognized marriage — then Virginia judges would follow that law, and call experts to determine just what religious ceremonies suffice and what effect they have.

And this wouldn’t be because Virginia was being governed by Sharia, or because American Muslims are entitled to have their legal rights adjudicated under Sharia. Rather, it’s because Virginia law calls for the application of the law of the jurisdiction where the marriage or divorce took place, whatever the law might be — again, except in rare situations where the law is contrary to Virginia public policy.

Perfectly normal behavior for American courts, and in my view perfectly sound behavior. American courts should apply American law, but sometimes American law calls for the application of foreign law, and then American courts should apply that. Yet under the Oklahoma constitutional amendment, Oklahoma courts would have been barred from considering Pakistani law in this situation, had the amendment not been enjoined on Establishment Clause grounds. Likewise, under the proposed Arizona statute that I cited at the beginning of this post, Arizona courts would have been barred from doing the same.

The complaint, filed with the Illinois Department of Human Rights, alleges that Chick-fil-A discriminated against gays in public accommodations. Now none of the allegations suggest that Chick-fil-A employees refused to serve gays, or treated gay customers differently from straight ones. Rather, the argument is that “the company’s widely published corporate philosophy, culture and policies make clear to [complainant] that as an unmarried homosexual in a ‘non-traditional’ family unit, I am inferior to married heterosexuals and therefore, unwelcome, objectionable and unacceptable to Chick-fil-A.”

The Civil Rights Agenda press release puts the matter well:

The complainants are a same-gender family with a daughter. Chick-fil-A used to be one of their favorite places to eat until Mr. Cathy’s latest statements were reported so widely. Now, they feel completely unwelcome in the establishment.

Despite the Agenda’s protestations (“The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue”), the complaint is all about speech: Because the corporation’s officials are expressing views that disapprove of homosexuality, the theory goes, the government is supposed to hold the company liable — again, without any evidence that any particular person was denied service because of his homosexuality.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

But the Civil Rights Agenda is going further still: They are arguing that it violates public accommodations environment law for companies to express certain viewpoints even in their officials’ public statements. That theory is even more clearly violative of the companies’ First Amendment rights. I hope the Illinois Department of Human Rights recognizes that Illinois public accommodation law doesn’t cover such situations — but, if it does cover them, the First Amendment prevents it from being enforced.

The rebuke came from the Pennsylvania Judicial Conduct Board; the letter does not give more details, but I take it that the Board concluded that the judge’s actions in the Zombie Mohammed controversy were improper.

Local10.com (South Florida) reported several days ago:

The Miami-Dade County school district is looking to evict a pastor who rents space in a public school to preach. ...

[Pastor Jack] Hakimian preaches and teaches inside North Miami Senior High School every Sunday.In a recent sermon, he compared homosexuality to drug abuse and witchcraft.

Other sermons are titled: “Gays and Sex Addicts Can Change and Should Change” and “Pedophiles Use the Same Argument as Homosexuals and the Weed Smoking Community.”

In a statement to Local 10, Superintendent Alberto Carvalho said Hakimian’s teachings “appear to be contrary to school board policy, as well as the basic principles of humanity, and I have asked for immediate legal review to seek the termination of the contract that is involved. ... I am making this decision not on the basis of policy or politics but as a rejection of prejudice and intolerance.” ...

Now a school can certainly refuse to rent space altogether, or rent it only to a few favored groups. But School Board policy provides that, “District grounds and facilities should be made available for community purposes, provided the use does not infringe on the original and necessary purpose of the property or interfere with the educational program”; and indeed, according to Local10.com, “90 different religious organizations rent space in a Miami-Dade school buildings.” Many nonreligious organizations seem to do the same: “Religious rent generates $630,000 a year. Add all organizations, and $3 million a year is generated in rent.”

And this means that the government may not discriminate based on viewpoint in its program, see, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist. (1993). That’s so even if the school district concludes that the pastor’s teachings somehow “interfere with the educational program.” When the school district opens up its property to speech other than its own, or that of a few groups that it endorses, it is barred from discriminating based on viewpoint.

The district seems to justify its position by saying that, “A district spokesman said it appears Hakimian’s words contradict a nondiscrimination policy, which includes sexual orientation.” And the school can probably bar discrimination on school property, for reasons given in Justice Stevens’ concurrence in Christian Legal Society v. Martinez (2010) (and also here), for instance if a speaker wanted to exclude gay audience members, or black or white or male or female audience members. But the majority in the Christian Legal Society case defended its decision — which I think ends up pointing in the same direction as the Stevens concurrence — precisely on the ground that,

Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish — including a discriminatory one. Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.’”

Speech thus doesn’t lose its constitutional protection simply because the government labels it “discrimination” on the grounds that the speech is hostile to particular sexual orientations, religions, races, or what have you. Viewpoint discrimination is impermissible, even when it comes to access to government property (once that’s been opened to groups beyond just the government and a few government-selected speakers) — and that fully includes anti-homosexuality (or pro-homosexuality) viewpoints.