Supreme Court takes case of student group that bars gay members

[Stonewall]

All that said, there are two separate issues at play here: (1) the right of a group to choose set criteria regarding who can constitute its membership and (2) whether a public university can refuse recognition of said group based on its discriminatory admissions criteria.

I don't see this as two issues, really.  Organizations (clubs) that want to have the "right" to decide who can be members of their organization and also want to deny the "right" of other organizations (universities) to decide which clubs can be members of their organization.  Logically, their position is absolutely untenable... unless organizations do not have "rights."

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

[Martinus]

All that said, there are two separate issues at play here: (1) the right of a group to choose set criteria regarding who can constitute its membership and (2) whether a public university can refuse recognition of said group based on its discriminatory admissions criteria.

I don't see this as two issues, really.  Organizations (clubs) that want to have the "right" to decide who can be members of their organization and also want to deny the "right" of other organizations (universities) to decide which clubs can be members of their organization.  Logically, their position is absolutely untenable... unless organizations do not have "rights."

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

[grumbler]

Surely that can't be so. It couldn't say "No Jewish groups," for instance. So is it saying "No Christian groups here?"

I don't think so. This looks like a neutral law on its face; it sucks that this group has an incidental burden (putting up with gays), but its freedom of speech remains the same.

Hrmm. Let's tease this out. Suppose the school also says "You cannot use school funding to promote hate speech."

I don't see why the Uni would have to tolerate a group that says "no non-Jews allowed."  The club can have the purpose of exploring Jewish faith and identity, but I don't see any public interest served by having a group that doesn't offer its benefits to all members of the community.  Few non-Jews would want to join, but they should be able to if they want to.

And I would reiterate that I don't think groups have rights like "freedom of speech."  Other than that, I think we are in agreement.

[grumbler]

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate)

Can you cite for me again the source of group rights?  Are they the same basic thing as states' rights?

Because I don't see anything that would support your contention that "a private group ... enjoys the right to discriminate."  The group may have a power, and the individuals a right, but that is true of any individuals.

...at a public university (which doesn't enjoy that right since it acts with the color of state authority),

Wherein does the uni get rights, as well?  Same place as the student groups?

which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

People have a right of association, but not a right of getting access to university facilities for any purpose they desire.  There is a long string of cases which restrict the rights of students when necessary to the education mission.  I see no reason why the school could not deny access to those facilities to students who deny that access to other students.

[MadImmortalMan]

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

I would think they can't prevent them, even if they are disruptive. It's an open forum out in the street. If the group has some facility of its own which is maintained by the members, they may do as they please. If they meet on a college campus, they may only do such that the college allows them to do in their property. That's my take.

Not that it totally hinges on whose land the group is using. You certainly can't carte-blanche say that all groups must allow anyone in under any circumstances, though.

[Martinus]

The way I see it, both the freedom of speech (or religion) and the freedom of association have a much stronger component that is "positive" than the one that is "negative".

As far as freedom of speech (or religion) is concerned, you have a right to say "gays go to hell" or "Jesus is god", but you don't have a right to demand that noone can say that "Jesus is not a god".

As far as freedom of association is concerned, you have a right to meet with Al, Barry and Charlie in a public place to argue your point, but you do not have a right to say that Derek and Elisabeth can't join you there as well (of course, as I said, this differs when the meeting is held on a private property you own, but that's not the case here).

So I think from that perspective, a university rule saying "you can't promote hate speech" would be a bigger restriction of freedom than saying "you can't exclude gays" (irrespective of whether such restrictions are allowed because this is university and all).

[Martinus]

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

I would think they can't prevent them, even if they are disruptive. It's an open forum out in the street. If the group has some facility of its own which is maintained by the members, they may do as they please. If they meet on a college campus, they may only do such that the college allows them to do in their property. That's my take.

Not that it totally hinges on whose land the group is using. You certainly can't carte-blanche say that all groups must allow anyone in under any circumstances, though.

Yeah, that was my point, really. As long as the property is "non-private" from the perspective of the group (i.e. it is either public or owned by someone else, at the sufferance of whom they are using it - which is the uni case), I can't see how they would have a right to prevent people from attending their meetings.

Now I realise there is more to a group's membership than attending meetings, but I was trying to slice the "membership" into individual benefits/rights and see if anything "sticks" as it were.

[Stonewall]

All that said, there are two separate issues at play here: (1) the right of a group to choose set criteria regarding who can constitute its membership and (2) whether a public university can refuse recognition of said group based on its discriminatory admissions criteria.

I don't see this as two issues, really.  Organizations (clubs) that want to have the "right" to decide who can be members of their organization and also want to deny the "right" of other organizations (universities) to decide which clubs can be members of their organization.  Logically, their position is absolutely untenable... unless organizations do not have "rights."

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

Yes.  I remember reading recently about a KKK rally in some town in Ohio where the KKK went out and got permits to use public streets for their rally.  An anti-KKK group also sought to use those streets, but were prohibited.  The state (and colleges/universities) often allows private groups to use public facilities for private purposes.  Practically, it is difficult to restrict access to a public street, but groups often can and do just that.  Faelin hit on this earlier.  The state can't discriminate on the basis of the content of particular speech.  It can, however, discriminate on the basis of conduct.

My own example is my fraternity in college.  We had a meeting room on campus that was allocated to us by the university.  We had that room from 7pm to 9pm every Sunday evening and we enjoyed the right to restrict access to members only.  People trying to come in who were not members were turned away.  There was one group of feminazi anti-fraternity women who tried so desperately to get in a meeting taht we ended up calling the campus police.  They were arrested and removed for trespassing.  We, as a private group, had secured the universities permission to use that public room for our private purpose.

[Martinus]

All that said, there are two separate issues at play here: (1) the right of a group to choose set criteria regarding who can constitute its membership and (2) whether a public university can refuse recognition of said group based on its discriminatory admissions criteria.

I don't see this as two issues, really.  Organizations (clubs) that want to have the "right" to decide who can be members of their organization and also want to deny the "right" of other organizations (universities) to decide which clubs can be members of their organization.  Logically, their position is absolutely untenable... unless organizations do not have "rights."

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

Yes.  I remember reading recently about a KKK rally in some town in Ohio where the KKK went out and got permits to use public streets for their rally.  An anti-KKK group also sought to use those streets, but were prohibited.  The state (and colleges/universities) often allows private groups to use public facilities for private purposes.  Practically, it is difficult to restrict access to a public street, but groups often can and do just that.  Faelin hit on this earlier.  The state can't discriminate on the basis of the content of particular speech.  It can, however, discriminate on the basis of conduct.

My own example is my fraternity in college.  We had a meeting room on campus that was allocated to us by the university.  We had that room from 7pm to 9pm every Sunday evening and we enjoyed the right to restrict access to members only.  People trying to come in who were not members were turned away.  There was one group of feminazi anti-fraternity women who tried so desperately to get in a meeting taht we ended up calling the campus police.  They were arrested and removed for trespassing.  We, as a private group, had secured the universities permission to use that public room for our private purpose.

Yeah but that was the university's policy, not your constitutional right. Had the university chosen to, they could have allowed the feminazis to go into your premises and you would have no "right" to stop it.

[Stonewall]

All that said, there are two separate issues at play here: (1) the right of a group to choose set criteria regarding who can constitute its membership and (2) whether a public university can refuse recognition of said group based on its discriminatory admissions criteria.

I don't see this as two issues, really.  Organizations (clubs) that want to have the "right" to decide who can be members of their organization and also want to deny the "right" of other organizations (universities) to decide which clubs can be members of their organization.  Logically, their position is absolutely untenable... unless organizations do not have "rights."

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.  There is a strong line of cases (if my memory is right - it's been a while since I did anything with discrimination) that make it incredibly difficult for state authorities to get membership lists of private groups on the basis of freedom of association.  Groups have standing to defend these kinds of actions on behalf it their individual members on the basis that if an individual member has standing to defend, that right percorated to the group.

Could you explain what are the grounds for the group's right to discriminate?

If a group is organizing a rally in a street, can they legally prevent people from joining, as long as such people are not disruptive?

Yes.  I remember reading recently about a KKK rally in some town in Ohio where the KKK went out and got permits to use public streets for their rally.  An anti-KKK group also sought to use those streets, but were prohibited.  The state (and colleges/universities) often allows private groups to use public facilities for private purposes.  Practically, it is difficult to restrict access to a public street, but groups often can and do just that.  Faelin hit on this earlier.  The state can't discriminate on the basis of the content of particular speech.  It can, however, discriminate on the basis of conduct.

My own example is my fraternity in college.  We had a meeting room on campus that was allocated to us by the university.  We had that room from 7pm to 9pm every Sunday evening and we enjoyed the right to restrict access to members only.  People trying to come in who were not members were turned away.  There was one group of feminazi anti-fraternity women who tried so desperately to get in a meeting taht we ended up calling the campus police.  They were arrested and removed for trespassing.  We, as a private group, had secured the universities permission to use that public room for our private purpose.

Yeah but that was the university's policy, not your constitutional right. Had the university chosen to, they could have allowed the feminazis to go into your premises and you would have no "right" to stop it.

It gets fuzzy.  Schools that are state funded, i.e. public schools, generally can not discriminate against an individual or a group based on the content of that person's speech.  Think back to the Boy Scouts and their ban on gay scout masters.  A school where that scout group met and had its meetings tried to ban the group from the premises.  The courts stepped in and said, "oh no you don't."  They did this because if the school is going to make its facilities available for public use, then it can't viewpoint discriminate to deny access to groups they disagreed with.  The school was under no obligation to make the facilities available for public use, but once it did so, certain rights were triggered.  It's not a black and white issue.

[Martinus]

It gets fuzzy.  Schools that are state funded, i.e. public schools, generally can not discriminate against an individual or a group based on the content of that person's speech.  Think back to the Boy Scouts and their ban on gay scout masters.  A school where that scout group met and had its meetings tried to ban the group from the premises.  The courts stepped in and said, "oh no you don't."  They did this because if the school is going to make its facilities available for public use, then it can't viewpoint discriminate to deny access to groups they disagreed with.  The school was under no obligation to make the facilities available for public use, but once it did so, certain rights were triggered.  It's not a black and white issue.

I don't know the details of the boy scout case, but was it a membership discrimination that the school opposed or the content of their speech? I believe the case for both is different, as I said before - I don't think the uni should be able to say "ok, you can't say that homosexuality is a sin", but they can say "ok, you can't say that homosexuals are not allowed".

If the school in the Boy Scout case would say "ok, you can come to our meetings, unless you are a homo", I don't think a school should be required to let them operate on their premises, if they do not allow some of the students to join in a meeting.

Edit: Besides, I think there is a substantial hypocrisy going on here, unless I am mistaken. I mean, if the boy scout organization came to a preliminary school and started to teach kids about fisting and ass-to-mouth sex, could a school ban them "based on the speech content" or not? If they could, I don't see why they should not be able to ban what they deem hate speech - this is however my personal opinion, not a legal comment.

[grumbler]

It gets fuzzy.  Schools that are state funded, i.e. public schools, generally can not discriminate against an individual or a group based on the content of that person's speech.  Think back to the Boy Scouts and their ban on gay scout masters.  A school where that scout group met and had its meetings tried to ban the group from the premises.  The courts stepped in and said, "oh no you don't."  They did this because if the school is going to make its facilities available for public use, then it can't viewpoint discriminate to deny access to groups they disagreed with.  The school was under no obligation to make the facilities available for public use, but once it did so, certain rights were triggered.  It's not a black and white issue.

The scouts won some cases and lost others.  Interestingly, the BSA argues that it is a religious organization that can ban atheists, but is also not a religious organization that would violate the separation of church and state if they could not engage in (what they admit is) religious-based recruitment and meeting.  The difference, as I understand it, is that they claim that their religion is so broad as to not be religion, just religious.

Personally, I think tha the BSA is probably a por example to use as a legal precedent.  No one can get justice in a case involving the BSA, because they won't have enough impartial jurists to properly hear the case.

[MadImmortalMan]

The Boy Scout case sounds like it was decided wrongly to me, but maybe because it was a publicly-owned place.. Tell me, Stoney. If that case had involved some sort of privately-owned gathering place instead of a school--say they were having their scout meetings at Chuck E Cheese. Then would it have been ok for Chuck E Cheese to give the scouts the boot?

[Palisadoes]

Were we talking about a private group at a private university, I would agree.  However, we're talking about a private group (which enjoys the right to discriminate) at a public university (which doesn't enjoy that right since it acts with the color of state authority), which changes the nature of the argument.  Group rights are tricky.

Well at least there is debate in America over the right of the government to interfere in membership rights. In the UK no matter how "private" a membership club is, the government still has the right to overrule their constitutions for the cause of ending discrimination. There were quite a few men-only golf clubs which had to admit women, for example. I assume the same would be applied to things like the Women's Institute too.

Seems ridiculous, but hey, that's the Labour party! They love to interfere.

[Neil]

But the same can be said about divorcees, yet their rights are not restricted.

Divorce doesn't have the same devastating social implications that fags do.