Right of expressive associations to discriminate in membership

[Leslie Goldstein]

by "doctrines" are you referring to behavior codes such as bans on sex-based
harassment or agreements to re-cycle while on company premises or what?  I have
never heard of oaths of allegiance to doctrines.  Can you be a bit more
specific?
Leslie

Joseph Hall wrote:

> And yet certain feminist-owned corporations can require employees to sign
> oaths of allegiance to feminist doctrines, ecological concerns, etc., as
> well as require them to attend (political) "sensitivity training sessions"
> even if the oaths or sessions conflict with the employees' religious
> beliefs.
>
> ----- Original Message -----
> From: Leslie Goldstein <lesl at UDEL.EDU>
> To: <CONLAWPROF at listserv.ucla.edu>
> Sent: Saturday, April 22, 2000 1:18 PM
> Subject: Re: Right of expressive associations to discriminate in membership
>
> > I do not believe Ohio believed hate speech "more protected" than religious
> > speech.  What it likely figured was the the GOVT qua govt is more likely
> > prohibited to engage in speech that is pro- or anti- any religion (estab
> clause
> > incorported) than it is ANY other speech, hateful or not.  (can't blame
> Ohio for
> > the Scalia-five-of-_RAV_'s having  effectively taking
> fighting-words-hate-speech
> > out of the unprotected box)
> > LFG
> > Douglas Laycock wrote:
> >
> > >         Of course required statements of faith are a form of religious
> > > discrimination that would be forbidden to secular employers.  They are
> also
> > > essential to the self-definition of religious organizations protected by
> > > the First Amendment.  The application of religious discrimination law to
> > > religious organizations is a category mistake or a drafting glitch, and
> the
> > > claim to a constitutional exception should not have been as difficult as
> it
> > > has been.
> > >
> > >         The equal protection clause may restrict government hate speech.
> But
> > > whatever the doctrine, Ohio's bottom line was that it thought it more
> > > promising to argue that it had the power to exclude religious speech
> from
> > > the capitol grounds, and less promising to argue that it had the power
> to
> > > exclude hate speech from the capitol grounds.  At least on those facts,
> > > Ohio seemed to think that hate speech was more protected than religious
> > > speech.
> > >
> > > At 06:54 PM 04/13/2000 EDT, you wrote:
> > > >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)
> > > >
> > >
> > > Douglas Laycock
> > > University of Texas Law School
> > > 727 E. Dean Keeton St.
> > > Austin, TX  78705
> > >         512-232-1341 (phone)
> > >         512-471-6988 (fax)
> > >         dlaycock at mail.law.utexas.edu