Seventh Circuit Decision in Christian Legal Society v. Southern Illinois University

[Ed Brayton]

Greg Baylor wrote:

>A majority of the Seventh Circuit panel directed the district court to enter
>a preliminary injunction requiring the law school to reinstate the chapter
>during the pendency of the litigation.
>  
>
I'm going to repeat here what I said in an email I just sent to an 
attorney working on the UC/ACSI lawsuit. What I'm really curious about 
is how to distinguish between the line of cases that say you can't 
withhold recognition, benefits or access from religious groups if you 
allow them to non-religious groups (Rosenberger, Lamb's Chapel, Good 
News Club), and the line of cases that say that the government can 
withhold benefits from groups that engage in discrimination (Bob Jones, 
etc). In discussing the North Carolina case, Prof. Volokh, if I recall 
correctly, said that if the university had refused to recognize the 
group because it discriminates rather than because it's religious in 
nature, that would have been perfectly legal. And he seemed to think the 
courts were right in both cases. But it seems to me that there's a very 
thin line between the two, if one exists at all. We can't expect a 
Christian student group to allow non-Christians to lead the group any 
more than we could expect a Democratic group to allow Republicans to 
lead the group or have voting rights, or an environmentalist group to 
allow anti-environmentalists, and so forth. Yet none of those examples 
would cause anyone to blink an eye. It seems to me that private groups, 
even those who get public benefits, should be allowed to choose their 
leaders. I can see a distinction between those cases and the Boy Scout 
case in the 7th circuit because the Pentagon's support for the jamboree 
is a special benefit given only to them. But in a case where there is a 
general benefit to private groups for recognition, benefits or access, 
religious groups should be treated the same as non-religious groups, 
which means they should be able to control their membership.

Ed Brayton