Reviewing Associational Freedom Claims in a Limited Public Forum: An Extension of the Distinction between Debate Dampening and Debate Distorting State Action

Abstract:     
In this article, Professors Amar and Brownstein analyze the arguments made by the parties and the Supreme Court in the recent Christian Legal Society v. Hastings case, in which the Court upheld Hastings College of the Law’s non-discrimination policy as applied to registered student organizations (RSOs). The authors discuss what the Court’s use of the “reasonable and viewpoint neutral” test for limited public forums in this setting means for future doctrine.

Among other things, the authors argue that even had the Hastings policy focused on prohibiting religious discrimination in particular (rather than requiring RSOs to “take all comers”), the Christian Legal Society’s argument that the policy was impermissibly viewpoint discriminatory should have failed. Laws that target and prohibit religious discrimination in some respects favor (rather than discriminate against) religious speech, by protecting religious adherents. Moreover, if singling out religious discrimination constitutes viewpoint discrimination against religious groups, then accommodating religion would also violate free speech neutrality norms by unlawfully favoring religious viewpoints, a result that would hinder rather than promote religious liberty.

Number of Pages in PDF File: 46

Accepted Paper Series