Religious Discriminiation in Private Universities

odoreater · Sep 18, 2007

Originally Posted by lawyerdad

Those limitations on purely private (i.e., non-governmental) conduct do not stem from any inherent limitation on private conduct in the Constitution per se, but rather from statutory limitations enacted pursuant the authority granted to Congress in the Constitution.

Right. So, for example, a Court can't just willy nilly interpret the constitution to say that private schools are not permitted to discriminate on the basis of religion. However, if for example, a state were to pass a law prohibiting private institutions from discriminating on the basis of religion, that law would be subject to constitutional review in the federal courts.

DNW · Sep 18, 2007

Originally Posted by lawyerdad

Odoreater and DW are generally correct here, but left out a step in the analysis. The Commerce Clause of the Constitution has been read as a fairly broad grant of authority to the federal government over areas that might otherwise be exclusively with the control of the various states. Thus, the Commerce Clause is the basis for the authority for the federal government, through affirmative legislative action, to do things like set a federal minimum wage or pass the Civil Rights Act (both of which regulate private conduct having a connection to interstate commerce).
Those limitations on purely private (i.e., non-governmental) conduct do not stem from any inherent limitation on private conduct in the Constitution per se, but rather from statutory limitations enacted pursuant the authority granted to Congress in the Constitution.

Thus endeth the lesson.

Have you thought about the teaching business, LD?

AlanC · Sep 18, 2007

Originally Posted by odoreater

How can you be so sure? What makes you certain that, in a system where all laws are subject to judicial interpretation, this one document was never meant to be interpreted and applied to situations that the original framers did not anticipate?

That, then, makes it the entirely arbitrary document it has become. There exists the mechanism for amending the constitution if change is desired.

One hopes that a private religious college could determine that, say, an atheist might not be the most desirable person to mentor younger students given the colleges reason for existing.

lawyerdad · Sep 18, 2007

Originally Posted by DarkNWorn

Thus endeth the lesson.

Have you thought about the teaching business, LD?

From time to time, actually, although more as a years-down-the-line-when-I'm-ready-to-start-easing-into-retirement kind of notion. However, after law school I went out and started to actually practice law, rather than clerking or doing the other sorts of things people do to pave their path to the ivory tower. As Odoreater has previously observed (and as I imagine you've found) legal academe has a pronounced distaste for people who sully themselves with the actual business of law.

So, if I ever wanted to do a full-time teaching gig, I'd probably have to devote the time and energy to writing a couple of bs law-review type articles.

lawyerdad · Sep 18, 2007

Originally Posted by AlanC

That, then, makes it the entirely arbitrary document it has become. There exists the mechanism for amending the constitution if change is desired.

One hopes that a private religious college could determine that, say, an atheist might not be the most desirable person to mentor younger students given the colleges reason for existing.

I'd respectfully suggest, Alan, that while there is some merit to your general point the "entirely arbitrary" characterization is rhetorical excess that is supported neither by history nor by the practicalities of our political structure and culture.

Fuuma · Sep 18, 2007

Originally Posted by odoreater

How can you be so sure? What makes you certain that, in a system where all laws are subject to judicial interpretation, this one document was never meant to be interpreted and applied to situations that the original framers did not anticipate?

Btw, I'm not one of those people that believes the constitution is a strict set of rules that was meant to be beyond interpretation, and I did not use the term "liberal interpretation" in such a way as to imply any kind of value judgment. I was using the term "liberal" in a generic sort of way.

The constitution as sacred text doctrine becomes particularly intenable, to the point of absurdity, when you try to project your society say, 300 or 800 yrs from now, considering what was/wasn't allowed 300 to 800 yrs ago. The social contract, if there can be such a thing, only realize its true value for the first generation involved (those that actually "sign" the contract) is evolution is not permitted or even encouraged. This is the basic flaw with most of what Rousseau envisionned (he had his eye on the establishment of such a contract and failed to anticipate what would happen to future generations) but that is for another discussion.

odoreater · Sep 18, 2007

Originally Posted by AlanC

That, then, makes it the entirely arbitrary document it has become. There exists the mechanism for amending the constitution if change is desired.

One hopes that a private religious college could determine that, say, an atheist might not be the most desirable person to mentor younger students given the colleges reason for existing.

I don't believe that it is or has become an arbitrary document. In fact, I think that much of the success of our society and the way that it is organized lies in the complex interplay between the document's rigidity and malleability. The rigidity lies in the fact that it gives us some core principles that guide us; the malleability lies in the fact that those core principles can be extended to apply to situations that the founding fathers never dreamed of. In fact, I think that this nature is what has allowed this particular document to last for so long where others have completely failed (how many constitutions has France had?).

taxgenius · Sep 18, 2007

Originally Posted by odoreater

I don't believe that it is or has become an arbitrary document. In fact, I think that much of the success of our society and the way that it is organized lies in the complex interplay between the document's rigidity and malleability. The rigidity lies in the fact that it gives us some core principles that guide us; the malleability lies in the fact that those core principles can be extended to apply to situations that the founding fathers never dreamed of. In fact, I think that this nature is what has allowed this particular document to last for so long where others have completely failed (how many constitutions has France had?).

You guys are wasting your time. There are judges on both sides of the fence.
See: http://en.wikipedia.org/wiki/Textualism

taxgenius · Sep 18, 2007

Originally Posted by lawyerdad

That makes two of you.

...and wpeters calls himself a lawyer

He probably works at some DC sweatshop and forgot Constitutional Law 101.

Fuuma · Sep 18, 2007

Originally Posted by taxgenius69

You guys are wasting your time. There are judges on both sides of the fence.
See: http://en.wikipedia.org/wiki/Textualism

There could be judges under the fence, all around the fence or building another fence elsewhere and the issue would still be worth discussing. I don't see the point you're trying to make, especially considering that I'm pretty sure everyone posting in this thread knows what a textualist is.

odoreater · Sep 18, 2007

Clearly there are judges with different theories of how to interpret the constitution (btw, the article you site to is talking about statutory interpretation and not constitutional interpretation - the two are very different). I don't see why throwing the wisdom of learned men into the fray is a bad idea. In any case, I really don't see why that makes it a topic not worth discussing.

wpeters · Sep 18, 2007

Originally Posted by taxgenius69

...and wpeters calls himself a lawyer

He probably works at some DC sweatshop and forgot Constitutional Law 101.

Nah. Just blinded by your taxgenius.

Dakota rube · Sep 18, 2007

Originally Posted by wpeters

Prohibition against racial discrimination in the sale or rental of housing. Sale and/or rental of private property is a paradigmatic "private conduct," but the Constitution prohibits discrimination in this area.
Actually, depending upon the specific circumstances involved, discrimination in the sale or rental of housing is perfectly legal. IIRC an owner of less than 4 units of housing may refuse to sell to anyone in a protected class, as long as the sale is not being facilitated by a licensed real estate agent.

Further, an owner of a 4-plex, who lives in one of those units, may refuse to rent to anyone, again, as long as the transaction does not involve a licensed agent.

(At least the laws of the two states in which I conduct business allow such discrimination.)

odoreater · Sep 18, 2007

Originally Posted by Dakota rube

Actually, depending upon the specific circumstances involved, discrimination in the sale or rental of housing is perfectly legal. IIRC an owner of less than 4 units of housing may refuse to sell to anyone in a protected class, as long as the sale is not being facilitated by a licensed real estate agent.

Further, an owner of a 4-plex, who lives in one of those units, may refuse to rent to anyone, again, as long as the transaction does not involve a licensed agent.

(At least the laws of the two states in which I conduct business allow such discrimination.)

I know there is some nuance in this area of law, but, it could just be that nobody has challenged the constitutionality of those laws yet.

slycedbred · Sep 18, 2007

I'm assuming the one on topic response was correct?

Interesting discussion tho!

Religious Discriminiation in Private Universities

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