Boy Scouts, Jews for Jesus, and Bruin Armenians

[Volokh, Eugene]

        If only these were indeed easy!  Unfortunately, I don't think either
is; and it also seems to me that what John calls "obscuring the rationale"
might also be pointing out that rules can apply in places beyond the core
cases for which they were designed.  Sure, the rules might have been aimed
at groups like the Bruin Math Club and the Bruin Chess Club, but the fact is
that they apply to groups like BAA and BJFJ, too.  (Also, just in defense of
my problem design, the problem follows Roberts and Dale, so I intentionally
chose examples that were somewhat different.)

But let me ask a question specifically about religious clubs, and focusing
right now on the freedom of expressive association, rather than on the Free
Exercise Clause.  Roberts stressed that "[t]he Act . . . imposes no
restrictions on the organization's ability to exclude individuals with
ideologies or philosophies different from those of its existing members."
Presumably, this means that an Act which did impose such restrictions would
impose a substantial burden, especially after Dale.

                Doesn't this mean that Christian groups, for instance,
should be free to discriminate in favor of Christians?  After all, if
someone isn't a member of the denomination -- though they could easily
become one -- that's pretty strong evidence that their ideology or
philosophy is different from the group's, no?  In fact, as to some groups,
if one does share the ideology, e.g., accepts Jesus as one's Lord and
Savior, accepts certain articles of faith, and so on, then he by definition
is of that religion, so if he isn't of that religion then he by definition
does not accept part of the ideology.  So is it even possible to craft a
policy that limits voting rights and officer status to those who share the
group's ideology without it being religious discrimination?

                On the other hand, the case would be tougher as to Jewish
groups, or other groups that require ethnicity (or at least a laborious
conversion process) as well as belief.  It is possible to have someone who
shares the ideology of Jews for Jesus but who isn't a member of the group --
he could be a Christian non-Jew who thinks Jews should convert to
Christianity.  And yet it still seems to me that (setting aside for a moment
the question of the government's extra power when acting as proprietor)
groups which have a religious orientation in which someone being ethnically
Jewish is religiously important must have a right to limit voting membership
and officer status to people who are indeed ethnically Jewish.  Does that
make sense?

Eugene


> -----Original Message-----
> From: John Noble [SMTP:jnoble at DGSYS.COM]
> Sent: Friday, June 15, 2001 5:53 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Boy Scouts, Jews for Jesus, and Bruin Armenians
>
> You make it too easy, and you always obscure the rationale with your
> hypos.
> How about a challenge to the UCLA policy brought by BAA and BJFJ, and
> intervenors -- the Bruin Math Club (which bars women because "girls can't
> do math"), the Bruin Gay Men's Choir (which bars women but not straight
> men
> because "well, we just like men better"), the Bruin Marching Band (which
> bars blacks because "like, you know, it puts these, like, freckles on
> those
> cool pictures we make on the field at half-time in our white uniforms, you
> know?"), the Bruin Chess Club (which bars Middle Eastern players because
> "I
> know, the Arabs invented chess, but they have a personal hygiene
> problem"),
> and the Bruin Greco-Roman Wrestling Club (which bars gays because "look,
> we
> got nothing against queers, but really, would you want one reaching
> between
> your legs to grab your butt"), and the Bruin Rape Survivors Club (which
> bars men because "one of the reasons women come here is that after being
> raped they view all men as predators").
>
> I think the last is the exception that proves the rule: you can protect
> the
> right of expressive association by establishing membership criteria that
> depend on shared interests, beliefs and needs almost invariably without
> categorical qualifications that turn on race, religion, sex, national
> origin, or sexual orientation. The anti-discrimination rule will seldom
> burden expressive association. Where it does, it is because the
> categorical
> exclusion is the purpose of the association (like the Rape Survivors Club)
> and can be recast in non-discriminatory terms -- refusing membership to
> anyone who would be viewed as a predator by women who view all men as
> predators. The Gay Men's Choir also makes the cut -- the expression is gay
> men singing. I don't think any of the others necessarily are protected.
> The
> BJFJ is close with its rule limiting membership to baptized Jews, but you
> have to come up with a better justification for the rule -- there's not
> basis for the conclusion that anyone who is not a baptized Jew will
> attempt
> to sabotage the organization. The non-discrimination rule lets you limit
> membership to people who share the belief that Jews should come to Jesus,
> but it prohibits a rule that denies membership to anyone who is both both
> Christian and formerly Jewish on the assumption that they cannot share the
> group's views. The Math Club might be reorganized as the Male Mathematical
> Superiority Club -- but now it's not about math, and there's no reason to
> exclude women who share the view that "girls can't do math." The
> Greco-Roman Wrestling Club could be reorganized as Wrestlers Who Hate
> Gays,
> but you still wouldn't burden their right of expressive association by
> requiring them to grant membership to a self-loathing homosexual wrestler.
> You end up, I think, with a very narrow universe where the
> anti-discrimination rule comes into conflict with the right of expressive
> association: organizations formed to exclude people of a different race,
> religion, sex, national origin or sexual orientation.
>
> Understand I think these rules are not helpful, and that they don't foster
> tolerance as much as the exacerbate discrimination. But if you are
> protecting expressive association, you have to ask what is the association
> expressing and is there a basis for a categorical determination that
> discrimination based on race, religion, etc. is necessary to the integrity
> of the expression.
>
> John Noble
>
> At 2:20 PM -0700 6/15/01, Volokh, Eugene wrote:
> >                In my continuing efforts to get unpaid consultation on
> the
> >Teacher's Manual for my First Amendment textbook, which I'm now writing
> --
> >not, I think, anyone's favorite pastime -- I thought I'd mention the
> >following problem that I include in the expressive association materials;
> >it seems very closely related to the Boy Scouts question we're now
> >discussing.
> >
> >                The problem, of course, is meant to make students think
> >both about the expressive association issues and the
> >government-as-proprietor questions.  Any thoughts?
> >
> >                Eugene
> >
> >
> >Problem: Religious Discrimination by a Student Group
> >
> >Imagine UCLA sets up a rule barring all groups that meet in university
> >classrooms and use university bulletin boards from discriminating in
> >selection of their voting members and officers based on race, religion,
> >sex, national origin, or sexual orientation.  The Bruin Armenian
> >Association (BAA) and Bruin Jews for Jesus (BJFJ) insist that their
> voting
> >members and officers be Armenians and Jews for Jesus, respectively.  BJFJ
> >in particular is concerned that in the absence of such a criterion,
> people
> >who dislike the group (and there are many such) could join en masse,
> >outvote the group's small existing membership (only 10 students), and
> thus
> >effectively destroy the group as a voice for their faith.
> >
> >                The Administration disagrees, and denies recognition to
> >the BAA and BJFJ, thus depriving them of access to classrooms and
> bulletin
> >boards.  Does this violate the groups' expressive association rights?
> Cf.
> >Hsu v. Rosslyn Union Free School Dist., 85 F.3d 839 (2nd Cir. 1996).
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