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

46 Pages Posted: 25 Oct 2010 Last revised: 13 Oct 2011

Vikram D. Amar

University of Illinois College of Law

Alan E. Brownstein

University of California, Davis - School of Law

Date Written: October 25, 2010

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.

Suggested Citation

Amar, Vikram D. and Brownstein, Alan E., Reviewing Associational Freedom Claims in a Limited Public Forum: An Extension of the Distinction between Debate Dampening and Debate Distorting State Action (October 25, 2010). Hastings Constitutional Law Quarterly, Vol. 35, p. 505; UC Davis Legal Studies Research Paper No. 234. Available at SSRN: https://ssrn.com/abstract=1697833

Vikram D. Amar

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Alan Edward Brownstein (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-2586 (Phone)
530-752-4704 (Fax)

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