Right of expressive associations to discriminate in membership

[LoAndEd at AOL.COM]

Doug Laycock raises several questions.  Without taking a view on the
correctness of either Cuffley or Hsu, a couple of short responses:

1.  Doug writes: "[In] cases like Hsu, in which on religion clubs are
excluded from high school or college campuses if they require a statement of
faith for their officers, their members, or their voting members[, t]hese
statements of faith are said to be religious discrimination, and the clubs
have lost a lot of such cases."

You aren't suggesting, are you Doug, that the required statements of faith
are *not* a form of religious discrimination that is ordinarily prohibited?
Surely, if General Motors required employees to make such a statement, that
would be religious discrimination in plain violation of title VII, correct?
And if the U.S. government insisted on such a religious test for its
employees, it would violate the First Amendment, as well as article VI,
right?  And just as the Jaycees can't exclude women under state
accommodations law, they can't insist on religious homogeneity either, no?  I
take it that you are, instead, simply suggesting that a club organized for
specifically religious purposes should be entitled, under Roberts, to an
exemption from the religious discrimination ban, upon a showing that the
discrimination is necessary for the club's expressive purposes.  Is that
correct?

2.  Doug also asks "[W]hen Ohio tried to exclude the Klan's cross
> from  the capitol grounds, why did it think it had more power to censor
>  religious speech than to censor hate speech?  It made the establishment
>  clause argument, but not the hate speech argument.

The answer to that one is easy, I think.  Ohio's argument (which the Court
rejected) was that if it permitted the cross, it would reasonably be
perceived as endorsing (or itself engaging in) religious speech, which the
Establishment Clause prohibits.  Nothing in the Constitution prohibits Ohio
from endorsing or engaging in hate speech.  I don't recall Ohio arguing that
the Free Speech Clause actually provides greater affirmative protection to
private hate speech than to private religious speech.  Such an argument
would, of course, be spurious.

Marty Lederman (in my private capacity)