Faith tests okayed for campus Christian group at ASU

[Alan Brownstein]

If the foundation of the argument is limited public fora doctrine, this
raises interesting questions about the scope of the rule. For example,
Mark suggested that the university could not regulate the selection of a
group's leaders or (perhaps) its members. Would the same rule also apply
to the group's policies about who might attend its events? Could a
University deny access to a student club that wanted to show a movie in
a lecture hall, but did not want to allow Catholics or Muslims to attend
the program?  Or consider another example. A university believes that
there is great educational value in students of different faiths (or
ethnic backgrounds etc) interacting with each other in extracurricular
activities. Accordingly, it provides special subsidies and/or access to
groups that are integrated (that do not discriminate in their membership
on the basis of religion, ethnicity etc.) Is that unconstitutional
viewpoint discrimination?

 

I suspect that some list members may be uneasy about the viewpoint
discrimination argument proposed here because it is not clear what its
limits are. When may a public university prohibit discrimination by
clubs, fraternities, or other student groups that want to use the
university's facilities, identify themselves with the university's name,
and receive the university's financial support?

 

Alan Brownstein

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gregory S.
Baylor
Sent: Thursday, October 20, 2005 10:12 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Faith tests okayed for campus Christian group at ASU

 

Regarding Prof. Jamar's question about racially discriminatory groups,
there are some relevant cases.  A number of state agencies have rejected
the KKK's application to participate in "Adopt-a-Highway" programs, and
the KKK has sued. I cannot recall off the top of my head how all of
these cases have come out, but I do know that the Eighth Circuit held
that Missouri violated the KKK's constitutional rights. The name of the
case is Cuffley v. Mickes.  The Thurmont case from Maryland is also
relevant.

 

In any event, it is easy to imagine courts differentiating between race
discrimination -- even by groups whose discrimination is the core of
their message -- on one hand and religious & sexual orientation
"discrimination" by religious groups on the other. As a matter of
statutory law, legislatures universally exempt religious organizations
from bans on religious and sexual orientation discrimination. This
strongly suggests that the government lacks a compelling interest in
stopping religious organizations from taking religious belief and sexual
conduct into account in their personnel decisions. One can easily
imagine a court concluding that the government does have a compelling
interest in eradicating race discrimination.

 

In our view, the fact that CLS chapter might be permitted to form or
associate or speak, as Prof. Jamar observed, does not dispose of the
constitutional question. The non-discrimination rules are invoked to
deny CLS chapters access to limited public fora created by public
universities for the benefit of studeng groups. As I read the student
group forum cases (Widmar, Rosenberger, Good News Club), the Court does
not even consider what privileges the excluded groups continued to
possess; it focuses on what they have been denied (i.e., access to the
forum). In addition, in each of these cases, the government is
conditioning access to a benefit upon compliance with a rule that, if
obeyed, would undoubtedly undermine the CLS chapter's right of
expressive association (among others). The fact that the CLS chapter can
avoid this burden by eschewing recognition and attendant benefits does
not make the government's rule constitutionally permissible.

 

Greg Baylor

 

Gregory S. Baylor

Director, Center for Law and Religious Freedom

Christian Legal Society

8001 Braddock Road, Suite 300

Springfield, VA  22151

703-642-1070 x3502

703-642-1075 (fax)

GBaylor at clsnet.org

http://www.clsnet.org

	 

	 

	
	
	

	 

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