Faith tests okayed for campus Christian group at ASU
stevenjamar at gmail.com
Thu Oct 20 13:29:51 PDT 2005
Just because some state exempts religious organizations from
liability for some forms of discrimination does not mean that all
states must do so or that all types of discrimination that the
religious organization claims impinge on its claim of boundless
latitude in its actions need to be permitted. The Constitution does
not give carte blanche and states have some ability to regulate in
Nonetheless, I think wiser policy is to exempt certain organizations
from the reach of such laws, but that is not the same as saying that
the government is prohibited by the constitution from acting foolishly.
On Oct 20, 2005, at 1:11 PM, Gregory S. Baylor wrote:
> 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
> 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
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Wednesday, October 19, 2005 9:46 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Faith tests okayed for campus Christian group at ASU
> I'm no fan of Smith or Rosenberger.
> And the field is problematic, to put it mildly.
> But, why must the state fund an organization dedicated to violating
> its lawful rules? Not just speaking about them or believing them
> to be wrong, but violating them in conduct?
> The discrimination is not based on belief, but on action. They are
> excluding people on a basis the state has said is improper if the
> group wants state benefits.
> It does not stop the group from existing. It does not stop anyone
> from believing as they wish. But where is the constitutional
> requirement that the group get the money from the state?
> As a matter of policy at the school, I would want to allow greater
> latitude for such organizations, but that would be a matter of
> policy as adopted by the school, not a matter of Constitutional
> restrictions. A matter of accommodation by policy, not by
> constitutional requirement.
> The problem isn't with beliefs in the abstract or beliefs in
> something that is a lawful basis for discrimination, but rather
> with actions based on beliefs where those actions violate the
> The groups are not being denied the right to form or to associate
> or to speak. They are being denied state benefits because they are
> violating a constitutional law.
> If the rule is the other way, where does it end? What
> distinguishes discriminating against people with a certain status
> of homosexuality from discriminating against people of another
> status like race or gender once the state has decided that that
> form of discrimination is unlawful? If we allow the one, how can
> we not allow the KKK to be a recognized religious organization that
> excludes Jews, Catholics, and Blacks?
> I am serious. How do you make that case?
> Prof. Steven D. Jamar vox: 202-806-8017
> Howard University School of Law fax: 202-806-8567
> 2900 Van Ness Street NW mailto:stevenjamar at gmail.com
> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
> "To see a World in a Grain of Sand
> And a Heaven in a Wild Flower,
> Hold Infinity in the palm of your hand
> And Eternity in an hour. "
> William Blake
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Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
A word is dead
When it is said,
I say it just
Begins to live
Emily Dickinson 1872
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