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Expressive Association, Student Groups Open Only to Members of One Religion, and Government Subsidies:

A school or university bans discrimination (based on race, religion, sex, and the like) by all student groups that want access to school property and school funds. The ban applies even when it seems contrary to the group's ideological mission — for instance, when a Christian student group is told that it can't limit membership to Christians (or a Muslim one to Muslims or an atheist one to atheists).

Do such bans violate the school or university student groups' rights of expressive association, see Boy Scouts v. Dale, or high school student groups' rights under the federal Equal Access Act? Or are they permissible school decisions about whom to give government benefits (such as access to classrooms or funds)?

Last Friday, the Ninth Circuit held, in Truth v. Kent School Dist., that such policies are indeed constitutional, and don't violate the Equal Access Act. The court remanded for findings on whether the policies were discriminatorily applied to this group because of its religiosity, given that the Men's Honor Club and the Girl's Honor Club were recognized even though their membership criteria violated the policy — but that's an implementation detail that I won't focus on further.

The court's constitutional reasoning seems oddly cursory to me: The court notes that Truth raised an expressive association claim, but it doesn't discuss that claim, or Boy Scouts v. Dale, the case on which Truth understandably relies in its briefs.

At the same time, as I've argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), the bottom line seems right — the government need not subsidize the student groups' right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here's a table that illustrates this:

Right to abortionA state may not ban abortions,but it need not pay for them with state funds, or allow them to be performed at state-run hospitalseven if it chooses to pay for childbirth.
Right to free speechA state may not ban advocacy of a candidate or a legislative proposal,but it need not subsidize it through the charitable tax exemptioneven if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marryA state may not require people to marry,but it need not give unmarried couples or platonic roommates special dorm housing,even if it subsidizes married couples by offering such housing.
Right to privately educate one's childrenA state may not ban private education,but it need not pay for private education,even if it pays billions for public education.
Likewise, a state may not ban discriminatory expressive associations, but it need not give them free access to school resources, even if it gives such resources to groups that choose not to exercise their rights to discriminate in members selection.

It's true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn't stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that's open only to groups that don't discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy. True, the nondiscrimination rule reflects the enactors' viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups' speech, but rather by the groups' conduct.

I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don't want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.

It's true that religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.

Nonetheless, while I think exempting groups this way is good policy, I think it's not a constitutionally mandated policy (and I'm inclined to say it's not mandated by the Equal Access Act, either, though I haven't spent as much time thinking about that). If you're interested in more detail on this, check out the article I cite above.

Mike S.:
Religious groups can also be technically non-discriminatory while avoiding members not of the faith by accepting everyone with the appropriate practice. For example, an Orthodox Jewish group might accept members of all faiths but require all members to observe Shabbat and kashrut, Rabbinic laws of business ethics, family purity and so on. The likelihood of anyone other than an Orthodox Jew agreeing to such terms is very low.
4.29.2008 8:00pm
tarheel:
Interesting stuff. In 2005 UNC was forced to back down from de-recognizing a Christian fraternity that refused to sign the non-discrimination pledge because it would not accept gays. A federal judge hinted strongly in denying a motion to dismiss that the university needed to change its policy or he would change it for them (Alpha Iota Omega v. Moeser).
4.29.2008 8:00pm
ReaderY:
If I were parents in the school district I'd sign my kid up for honor society membership while the decision is still in effect and it's still possible to claim judicial estoppel if the school tries to limit membership based on discriminatory criteria such as grade point average.
4.29.2008 8:16pm
Alex F:
"You want student groups to be effective voices for the ideologies they were organized to espouse, and you want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability."

There are cases where religious group membership depends not only on ideology but on parentage. Some religions, like the Druze, do not accept converts. Would your opinion be different with a group like that?
4.29.2008 8:16pm
Eugene Volokh (www):
ReaderY: School policy -- like the policies of many governments and other institutions -- bars discrimination based on certain criteria (race, religion, sex, and the like) but not other criteria (such as GPA).

Alex F: My bottom-line opinion wouldn't be different. But the analogy to ideology (religious groups' religious discrimination is just like other ideological groups' discrimination based on their ideologies) would no longer work.
4.29.2008 8:29pm
JohnO (mail):
When I was in law school, I belonged to the College Republicans. Since there were, oh, maybe ten law students who were "out of the closet as Republicans," we constantly worried that the law school's Young Democrats would simply shut us down by having a bunch of Democrats join and vote to do things contrary to the Republican agenda.

An even funnier thing happened when somebody suggested we seek out a faculty advisor. The conversation went some thing like this:

"We should get a faculty advisor."

"Anyone know of a Republican on the faculty?"

[long awkward pause]

"Uhh, maybe somebody who teaches business law?"
4.29.2008 9:49pm
Duncan Frissell (mail):
So a KKK group would have to be given student funds as long as it admitted all races but verbally denigrated non-white members (redundant) to discourage membership.
4.29.2008 10:16pm
John (mail):
Very clear and informative post!
4.29.2008 10:23pm
wm13:
In real life, these purported non-discrimnation policies are only applied to Christian groups. I recognize that real life is not Prof. Volokh's main interest.
4.29.2008 10:31pm
ReaderY:
Another interesting provision of the Texas marriage code:

§ 2.205. DISCRIMINATION IN CONDUCTING MARRIAGE
PROHIBITED. (a) A person authorized to conduct a marriage
ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.
(b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office.

Does this this provision mean what it seems to mean? The "persons authorized to conduct a marriage ceremony" include "a Jewish rabbi" and other clergy. Can a rabbi be required by the state to conduct interfaith marriages? On the other hand section (b) would seem to be nonsensical if applied to anyone other than a judge, so perhaps the whole provision either applies only to judges, or is a non-enforcible and hence non-justiciable expression of the legislature's abstract wishes as applied to anyone other than a judge.
4.29.2008 11:11pm
ReaderY:
Religious groups can also be technically non-discriminatory while avoiding members not of the faith by accepting everyone with the appropriate practice. For example, an Orthodox Jewish group might accept members of all faiths but require all members to observe Shabbat and kashrut, Rabbinic laws of business ethics, family purity and so on. The likelihood of anyone other than an Orthodox Jew agreeing to such terms is very low.

An Orthodox Jewish group could not do this, Orthodox Judaism has a number of religious functions which only Jews (determined by formal conversion or matrilineal descent) could perform, irrespective of beliefs, which would doubtless put it in conflict with a non-discrimination provision. Doing otherwise gets close to the ministerial (or "internal functions" rule.

It's not clear to me a state could enforce a contract in which it gives a religious group something of value in exchange for the right to pick its ministers. (although the group might have to give up the thing of value). In other words, religious groups have rights not applicable to the other cases in the table. A "non-discrimination" policy which covers a too much of a religious group's internal affairs could cross such a line.
4.29.2008 11:24pm
Eugene Volokh (www):
wm13: I'm very interested in real life. General impressionistic assertions about the world (whether or not plausible) made by anonymous commenters, and unsupported by any evidence, not so much.
4.29.2008 11:26pm
ReaderY:
I'm not completely sure where the line is, but the "internal affairs"/ministerial rule, has been applied to create an exception to discrimination laws in many cases. The First Amendment limits how far such laws can reach as applied to a religious group in a way not applicable to the other cases.
4.29.2008 11:38pm
Oren:
But EV, the Christians are being persecuted! Heaven protect them!
4.29.2008 11:45pm
J_A:
But isn't this in essence the same case as Boy Scouts of America v. Wyman?

On July 9, 2003, the 2nd Circuit Court of Appeals upheld the decision of the state of Connecticut excluding the Boy Scouts from its state employees' charitable campaign. In its opinion, the 2nd Circuit recognized that the Boy Scouts' policies were "constitutionally protected" under Boy Scouts of America v. Dale. The court nonetheless upheld removal of the Scouts from the charity list on the grounds that Connecticut did not "require" Boy Scouts of America to change its views, but merely required the Boy Scouts to pay a price for exercising its First Amendment rights.

The Supreme Court denied certiorari in that case.

In the similar case, Evans v. Berkeley, in which Berkeley had provided the Sea Scouts with free use of facilities in the City's marina. In 1997, the City passed a resolution requiring that in order to receive free use of the marina, non-profit organizations must "demonstrate" through "membership policies and practices" that it “promote[s] cultural and ethnic diversity.” The resolution also required that access to the marina "not be predicated on a person’s race, color, religion... age, sex, [or] sexual orientation".

Based on the Boy Scouts of America's policy of excluding gays and atheists from participation within its organization, Berkeley decided that continued subsidy of the Sea Scouts would violate the resolution. As a result, the City terminated the free usage arrangement, and began billing the Sea Scouts the standard rent of $500 per month for the amount of berth space it uses.

In response, a member of the Sea Scouts, Eugene Evans, and thirteen other members of the Sea Scouts sued the City of Berkeley. They alleged that the City's actions violated their Freedom of Speech and Freedom of Association.

A trial court ruled against the Sea Scouts, holding that "Berkeley had not 'attempted to muzzle anyone’s speech' or force the Sea Scouts to sever their association with BSA, but had only 'conditioned a city subsidy on compliance with nondiscrimination principles'."in March 2006, the California Supreme Court unanimously upheld lower courts rulings and found against the Sea Scouts:

"We agree with Berkeley and the Court of Appeal that a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy. We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA’s discriminatory policies."

The Supreme Court also rejected the appeal from Evans without comment, thus allowing the California decision to stand. Thus the Evans and Wyman rulings are the law of the land: expressive association IS constitutionally protected, BUT SO IS choosing whom to subsidize according to the criteria that the subsidizer decides to apply.
4.30.2008 1:27am
Randy R. (mail):
Tarheel: "In 2005 UNC was forced to back down from de-recognizing a Christian fraternity that refused to sign the non-discrimination pledge because it would not accept gays."

What's interesting about that case is that the frat sent a letter to the chancellor in which they implied that gays cannot be considered Christians and are hostile to Christianity, and that's why they can't be a part of their fraternity.

If this is what they teach at the frat house, then they need a serious reeducation. However, I understand that they have a constitutionally protected right to be bigoted and ignorant.
4.30.2008 2:09am
Eugene Volokh (www):
Just to be clear, circuit court rulings and state supreme court rulings are not the law of the land even when the Supreme Court denies cert. They are binding within their own circuits or states, they may be influential even outside them, and once you have a bunch of such cases all pointing in one direction they can create a conventional wisdom that's hard to budge. But they still wouldn't be the law of the land.
4.30.2008 2:51am
theobromophile (www):
It's true that religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.

Atheists understand this when you ask them whether or not their Rationalist Society ought to be required to admit Bible-thumping Christians into their midst.

From a practical standpoint, groups may discriminate quite easily and without repercussion: let everyone sign up on the mailing list (which helps when lobbying for student funding: club leaders can say, "Look how many students are involved!") and attend the meetings. Do not hold elections, ever. At the end of the academic year, the current Board solicits applications for the new Board and then appoints its successors.

If pressed, it can give the following criteria for selecting new members: lack of other commitments that would jeopardise the ability of the candidate to devote himself to the club, desire to make the club more prominent on campus by bringing in club-themed speakers and doing club-themed activities, and passion for and knowledge of the subject area (so as to inspire new members to join and be excellent spokesmen for the club).

Hope that isn't incoherent... back to studying. Yuck.
4.30.2008 2:59am
theobromophile (www):
Penultimate paragraph ought to include the term "Board" between "new" and "members."
4.30.2008 3:00am
Eugene Volokh (www):
I should also note that Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), took an approach quite different from the Ninth Circuit's, the Second Circuit's, and the California Supreme Court's: The panel majority concluded that the Christian Legal Society demonstrated a reasonable likelihood of success on its claim that applying a university antidiscrimination policy to it would violate the Society's expressive association rights. (This was a preliminary injunction decision, so likelihood of success was the standard.) As I mentioned, I think the Ninth Circuit's result was correct; but it's much too early to consider the matter closed based on circuit and state supreme court decisions.
4.30.2008 3:28am
dharma (mail):
I'm confused why any group - especially a religious, proselytizing group - would discriminate in membership. I'm pretty sure that every group in my schools (and I only attended public schools) were completely open. Some, like the Christian and the Black student groups, specifically reached out to the student body to try to get outsiders to join. Others, like the Muslim Student Association and the All-Girls Choir, usually had only members of insiders. However, technically, every member of the school was free to join.

This was certainly true in my high school, where the Morris Hills Varsity hockey team had a female goalie, and our homecoming queen was also the only female member of our varsity wrestling team.

But that's beside the point. I just don't see why a group would want to keep out certain members - short of blatant discrimination.
4.30.2008 3:49am
Soronel Haetir (mail):
Okay, I guess the question that didn't seem to get answered out of the original post is this: Can a gov't unit choose who not to subsidize in a discriminatory manner? If the policy is to deny funds to groups that discriminate on the basis of race, gender or religion but proceeds to then subsidize some groups that do so while denying others, can this practice be challenged?

And if so, how likely is it that funding will be secured instead of just denying all funds?
4.30.2008 5:43am
David Schwartz (mail):
But that's beside the point. I just don't see why a group would want to keep out certain members - short of blatant discrimination.
Well, the most obvious reason is a small group that is afraid of being taken over. Consider 100 Christians joining an Atheist group with only 30 members. The Christians could argue that there's nothing wrong with an atheism group that explains to people why atheism is wrong and they have just as much right to participate in the group as anyone else. This would prevent those who formed the group from being able to use the group as they intended.
4.30.2008 5:43am
BZ (mail):
Combine "government speech" cases with "public school curriculum" cases, add a dash of funding restriction cases (e.g., Rust and Rectors v. Rosenberg), and stir well.

I have argued to the Court about Justice O'Connor's "speech spectrum," which can be summarized as saying that government's power over speech increases as the speech comes closer to that of the government itself. It seems to work here as in other situations.
4.30.2008 9:46am
Clayton E. Cramer (mail) (www):
Randy R. writes:


What's interesting about that case is that the frat sent a letter to the chancellor in which they implied that gays cannot be considered Christians and are hostile to Christianity, and that's why they can't be a part of their fraternity.

If this is what they teach at the frat house, then they need a serious reeducation. However, I understand that they have a constitutionally protected right to be bigoted and ignorant.
Fortunately, you better know what Christians think, or should think, than Christians do. Next you will be upset that bigoted and ignorant Christians don't think that mass murderers, adulterers, and voodoo priests aren't Christians.
4.30.2008 10:29am
Randy R. (mail):
David S: "Well, the most obvious reason is a small group that is afraid of being taken over. Consider 100 Christians joining an Atheist group with only 30 members."

I've seen this argument raised over and over again, yet I have never seen anyone actually state that this happened. My experience with college students (and yes, I once was one) was that even if they wanted to take over an organization, it would be short lived. Most people who are passionate about a topic would prefer to start up their own club.

And yes, I went to public schools, and every organization had to be open to the entire student body, no restrictions. In college, when I was in the student gov't, we never once had a problem -- if you didn't feel comfortable with any group, you simply didn't continue going to their meetings.

And really, an important point about higher education is actually meeting and knowing people that you disagree with. I wouldn't suggest that any religious group should deny membership to anyone, particularly gays, any more than I would suggest any gay group should restrict Christians or other religions. We can learn from each other, and that's the best way to break down walls.

Others would prefer to hold on to their prejudices, as Clayton demonstrates. That's their right, of course.
4.30.2008 10:49am
David Schwartz (mail):
Debate would be impossible if it were impermissible to argue that you know what someone else should think better than they do.
4.30.2008 10:53am
ReaderY:
The 4th and 7th circuits have particularly strong conception of the ministerial right -- it was the 7th that relabled it as the "internal affairs" exception and restated it as the much broader principle that a state can't interfere in a religious group's internal affairs, and that application of a non-discrimination clause represents such interference.

Under the 4th and 7th circuit conception, the state has no business picking the ministers or controlling the internal affairs of a private group and never has a right to do so, and can't acquire such a right by signing a contract with a church. States can choose not to use churches for social services and the like if they wish, but they can't expect to enforce contracts which purport to prohibit them from selecting their members and leaders as they see fit or which purport to give the state any say at all in how that selection is done.

In Sleicher v. Salvation Army (2008), the 7th Circuit characterized relabeled the ministerial exception the "internal affairs exception." It characterized its purpose as a rule requiring judicial constructions that prevent the judiciary from deciding internal church matters such as questions of church membership and ministry.

THe ministerial exception rule interpreted in Sleicher was, as that case noted, being done as a rule of federal law rather than a constituitional rule, I acknowledge that it's language tending to suggest suggest that it thought the relevant lines of reasoning were essentially the same were dicta, however, the 7th Circuit said it would apply the rule to all federal laws unless contrary language required squarely facing and adjudicating the underlying constitutional rule. (Congress has never amended a statute to remove a judicially-created exception.) However, its dicta seems rather suggestive of what it would do if faced with the issue squarely.

It was federal law that requred California school districts to open their facilities to religious groups as a condtion of receiving certain federal funds. Their federal obligations are subject to well-established federal rules of interpretation, including (under the 7th circuit's view) the "internal affairs" rule. (I realize there may be a Saucier v. Katz issue, but the internal affairs exception has been very clear.)

One could argue that by opening its facilities only to groups which permit the state to have a say in membership and refusing to stay out of internal affairs, California simply didn't open its facilities to religious groups as federal law (at least in circuits which apply the internal affairs exception as a rule of federal construction) understands that term). If California doesn't want to have religious groups use its school facilities under these conditions, it can simply forgo the relevant federal funds. But by taking Uncle Sam's money, it has to live under Uncle Sam's rules.

It seems to me that the constitutional issue may end up directly raised.
4.30.2008 11:14am
LarryA (mail) (www):
Next you will be upset that bigoted and ignorant Christians don't think that mass murderers, adulterers, and voodoo priests aren't Christians.
The Bible is pretty clear about thieves and tax collectors, so I’m not sure why “mass murderers, adulterers, and voodoo priests” would be excluded. Remember Carla Fay Tucker? I’m particularly surprised that you included “adulterers” in your examples. Given the Biblical definition, anyone in a second marriage where the first spouse is still alive can’t be a Christian. That would put quite a dent in most congregations. The closest “voodoo priests” are next door in Louisiana, and I understand much of their faith is based on Catholicism. In fact, the group that Jesus had the most problems with, who wanted him to exclude all the unworthy ones, were the Pharisees. If you think hard, you might be able to come up with a modern example.
4.30.2008 11:16am
ReaderY:
Wrong case in my last post, I was referring to the Pennhurst clear-notice requirement(conditions attached to federal funds must be stated clearly). My concern was that when a federal courts adds an internal affairs rule as an implicit element of federal statutory construction to statutes which don't state it explicitly, as the 7th Circuit has been doing, it might not survive Pennhurst if applied to a suit by a private group against a government recipient of federal funds.
4.30.2008 11:29am
ReaderY:
LarryA,

It's arguments like this that help explain why it's a good thing that courts and other government agencies aren't permitted to adjudicate membership disputes, which would tend to require them to interpret church laws and doctrines in a way that might be, as your example illustrates, unsympathetic and quite possibly distorting.
4.30.2008 11:33am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 04/30/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
4.30.2008 2:15pm
theobromophile (www):
But that's beside the point. I just don't see why a group would want to keep out certain members - short of blatant discrimination.

I don't think it's about keeping out members, but about ensuring that the leadership reflects the values of the group as it was intended to be.

There was a big kerfuffle at Tufts a few years back when the Tufts Christian Fellowship (I think - it might have been a specifically Catholic group) elected an openly lesbian woman to the Presidency. She did not believe that her lesbianism was in contradiction to Biblical teaching, and, as such, did not see her leadership as problematic. IIRC, the outgoing group threw a fit, the incoming group threw a fit about the fit, with the Christians demanding to run their organisation in a manner consistent with Christian principles, and the others demanding non-discrimination.

It is not necessarily a takeover that concerns people, just a steady erosion of principles.
4.30.2008 2:34pm
Dilan Esper (mail) (www):
I think Prof. Volokh is wrong here, but only in the situation where the discrimination is central to the group's message. For instance, an on-campus chapter of the KKK should be able to discriminate, because their entire (evil) message would be compromised by forcing them to admit all comers. Similarly, a campus Christian club should not be required to admit atheists or Jews.

This is the same standard I would apply to other anti-discrimination laws, and it is why I don't agree with Boy Scouts v. Dale. In Dale, the Boy Scouts weren't founded upon the principle of homophobia. It wasn't central to their message, and the Court's evidence that it was central was very weak. But the same anti-discrimination law should have no application to a club founded by a group of homophobic straight guys who specifically wanted to create group that would advocate the public stoning of gays and lesbians.

Another, slightly different situation, but the same principle: sex discrimination laws shouldn't apply to Hooters. But they should, and do apply, to airlines who wanted to have only stewardesses and no stewards.
4.30.2008 3:15pm
Jiffy:
Dilan:

The obvious problem with trying to enforce the distinction you propose is that it gets courts into the business of determining what issues are "central" to the group's message, very possibly in contradiction to what the group itself thinks is central. In addition, the distinction is irrelevant to the legitimate purpose behind anti-discrimination requirements, namely, that government in handing out benefits may ensure that they not be distributed in a discriminatory manner. Better to allow organizations themselves to determine whether discrimination is sufficiently "central" to their beliefs to justify forgoing the government benefits.
4.30.2008 3:44pm
Randy R. (mail):
"It is not necessarily a takeover that concerns people, just a steady erosion of principles."

Again, I find it interesting that people assume that Christianity and gays are incompatible. Of course, it isn't true, as there are many gays who are Christians, and many Christians accept gays, as the illustration at Tufts proves. But why some people insist otherwise, I just don't understand. Some Christians hate gays and reject them, but not all do.

So, to put your statement another way regarding Tufts, it is a steady progression to higher principles from bigotry to love and acceptance.
4.30.2008 4:17pm
Oren:
So, to put your statement another way regarding Tufts, it is a steady progression to higher principles from bigotry to love and acceptance.
That sounds suspiciously like something Jesus would do . . .
4.30.2008 4:39pm
ReaderY:
But apparently love and acceptance doesn't apply to FLDS people?
4.30.2008 7:01pm
Philly Lawyer (mail):
Isn't the real problem the point made on the first page of the 9th Circuit opinion? Only approved student clubs are permitted. We would all agree that it would be unconstitutional for a city to allow only "approved" groups to exercise first amendment rights within city limits, and then conditioned "approval" on whether or not the group discriminated against certain classes of individuals in determining its membership. Conceptually, how is this case any different?
4.30.2008 9:07pm
Dilan Esper (mail) (www):
The obvious problem with trying to enforce the distinction you propose is that it gets courts into the business of determining what issues are "central" to the group's message, very possibly in contradiction to what the group itself thinks is central.

Actually not. Instead, you have to look at what the group thinks is central, based on their manifested conduct, rather than what the group claims is central in court briefs. In other words, if the Boy Scouts were a fraternal organization of straight youths who had for years led protests against the depravity of homosexual conduct, they win. But it's easy to claim anything's central in a court brief, and allowing such claims undermines antidiscrimination law. Actions speak louder than words.
5.1.2008 7:48pm