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

[Friedman, Howard M.]

I think Bob Jones rested on the particularly strong policy interest
against racial discrimination.  The students challenging CLS were mainly
complaining about CLS' discrimination against gays and lesbians.  Courts
don't see as strong a governmental interest in prohibiting that kind of
discrimination-- though I might well argue with their assessment.  If
the CLS cases focused more on complaints of Muslim or Jewish of liberal
Protestant students who were claiming religious discrimination by being
excluded from CLS membership, maybe the courts would have a harder time
distinguishing Bob Jones.

Howard Friedman

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ed Brayton
Sent: Thursday, July 13, 2006 1:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Seventh Circuit Decision in Christian Legal Society v.
Southern Illinois University

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
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