“The Defendants May Pick Their Poison”: Christian Group Scores Major Legal Victory Against University of Iowa

A Christian group at the University of Iowa scored a major win this week before the United States Court of Appeals for the Eighth Circuit.  In an opinion (below) with sweeping potential impact, the court reversed District Court Judge Stephanie Rose and ruled that University of Iowa officials can be held personally liable for targeting a Christian club and denying the rights of free speech and association. The University ultimately did not appeal findings that it violated the rights of this religious group and these students in its discriminatory application of university policies.

At issue is the disparate treatment shown a religious group, Business Leaders in Christ or BLinC. The University of Iowa registers student organizations under its “Registration of Student Organizations” (RSO) policy. The policy requires compliance with federal, state, and university rules. That does not include an “all-comers” rule (mandating acceptance of any and all interested students) but does include the University’s Human Rights Policy. That policy states, in relevant part:

 The University of Iowa brings together in common pursuit of its educational goals persons of many nations, races, and creeds. The University is guided by the precepts that in no aspect of its programs shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all.

It also contains a nondiscrimination clause:

Membership and participation in the organization must be open to all students without regard to race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual. The organization will guarantee that equal opportunity and equal access to membership, programming, facilities, and benefits shall be open to all persons.

However, this clause has been applied differently depending on the group. The Eighth Circuit noted that at least six RSOs expressly limit access to leadership or membership based on race, creed, color, religion, sex, and other characteristics that the Human Rights Policy protects. This includes Love Works which requires leaders to sign a “gay-affirming statement of Christian faith.”  Likewise, the House of Lorde holds membership “interview[s]” to maintain “a space for Black Queer individuals and/or the support thereof” and the Chinese Students and Scholars Association limits membership to “enrolled Chinese Students and Scholars.”

When it registered as an RSO, BLinC declared that it “was founded as a religious organization to help ‘seekers of Christ’ learn ‘how to continually keep Christ first in the fast-paced business world.’” BLinC’s officers lead their members in prayer and Bible discussion. Accordingly, the group leaders screen prospective officers “to ensure that they agree with and can represent the group’s religious beliefs.”

In March 2016, Marcus Miller, a BLinC member, asked the then group president about becoming an officer for the next school year. In later discussions, Miller revealed that he was gay and, according to the court, “told Thompson that he had been struggling with the Bible’s teachings on that topic.” After internal debate, the group decided that Miller should not lead the group as an officer in religious talks because of a fundamental disagreement with their biblical beliefs.

On February 20, 2017, Miller filed a discrimination complaint with the University and demanded that the University “[e]ither force BLinC to comply with the non-discrimination policy (allow openly LGTBQ members to be leaders) or take away their status of being a student organization.”

Meetings were held with University Compliance Coordinator Constance Schriver Cervantes and then-Associate Dean of Students Thomas Baker. Cervantes put forward a distinction in rejecting the group’s claim that it was blocking Miller due to his opposition to the group’s religious beliefs:

This included discussion of the “difference between discriminating on the basis of ‘status’ and choosing leaders based on ‘beliefs’ and ‘conduct.’”  Both Cervantes and Baker are lawyers. … Dr. Nelson and Dean Baker agreed that a student group could require its leaders to abstain from sexual relationships outside of marriage—or abstain only from same-sex sexual relationships—if the requirement “was applicable to all.” Dr. Nelson later testified that BLinC would not have violated the Human Rights Policy if it had denied Miller a leadership position based on his disagreement with BLinC’s “religious philosophy” instead of his status as a gay man.

The University demanded that BLinC rewrite its Constitution to be clear about its principles and expectations for officers and members.  The group did so that approved a Statement of Faith under the heading “Doctrine of Personal Integrity,” providing:

We believe God’s intention for a sexual relationship is to be between a husband and a wife in the lifelong covenant of marriage. Every other sexual relationship beyond this is outside of God’s design and is not in keeping with God’s original plan for humanity. We believe that every person should embrace, not reject, their God-given sex. Id.

It also clarified the process for being selected as an officer and the requirement that BLinC’s leaders “accept and seek to live BLinC’s religious beliefs.”

However, Nelson still rejected the group’s application, stating that the group failed to “comply with the University’s Human Right’s policy since its affirmation, as required by the Constitution for leadership positions, would have the effect of disqualifying certain individuals from leadership positions based on sexual orientation or gender identity, both of which are protected classifications.”

In a later decision affirming the denial, Dr. Lyn Redington, then-Assistant Vice President and Dean of Students agreed that the group was discriminatory even though the University later admitted that “a student could ‘publicly acknowledge’ or identify as being gay and still be [a] leader with BLinC so long as the student agreed with, and ‘agreed to live by, BLinC’s statement of faith.’” However, the University objected that “the ‘openly gay’ individual would have to regard his or her innate attraction to members of the same sex as ‘sinful’ in order to participate as a member of BLinC’s leadership team.”

District Court Judge Stephanie Rose ruled in favor of the group in finding that the University of Iowa did violate BLinC’s First Amendment rights to free speech, expressive association, and free exercise through their disparate application of the University’s Human Rights Policy.  The University did not appeal those findings. However, Rose also ruled that these officials could not be sued personally under immunity protections.  She was reversed as to the speech and association claims by the appellate court.

In his concurring opinion that these officials (including those like Cervantes who remains in the same position) can be personally sued, Judge Jonathan Kobes also dissented in part on the decision not top extend the ruling to the free exercise claims. He then delivered this haymaker:

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The decision could have profound impacts on universities.  There is a common complaint that officials will run unpopular groups through endless hearings or procedures to discourage them from seeking official recognition or appealing decisions. There is also a common complaint that religious or conservative groups are treated differently in such controversies.

There is no cost to the officials as individuals in taking such actions. However, the Eighth Circuit is saying that they can be personally liable in taking such actions.  Such liability is unlikely absent the violation of established policies or rules.

The Eighth Circuit ruled that these officials ignored clear and established law in taking this discriminatory action:

The rule from Lukumi and Fraternal Order clearly establishes that granting secular but not religious exemptions from a neutral policy violates the Free Exercise Clause. But if those cases were not enough, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer puts the question beyond debate. 137 S. Ct. 2012 (2017). Missouri offered grants to qualifying organizations to resurface playgrounds. Id. at 2017. Trinity Lutheran operated a religious preschool and applied for a grant but was turned away because the Missouri Constitution prohibited the state from giving money to religious institutions. Id. at 2017–18. The Court held that when the State denies an otherwise generally available benefit “solely on account of religious identity” without satisfying strict scrutiny, it violates the Free Exercise Clause. Id. at 2019.

The ruling now creates a personal cost to the use of university authority to discriminate against groups like BLinC.

It is not clear if the University will appeal. University officials and legal counsel cost the university dearly in forcing this controversial into litigation. Now they must decide whether to double down — a decision that other universities may strongly discourage.

The case is not ideal as a test case for the Supreme Court given the unappealed ruling that the University of Iowa did violate the Constitution in discriminatory against the group. Thus, these officials are arguing that, despite such clear discrimination and the violation of controlling case law of the Supreme Court, they should not be personally liable for such unconstitutional conduct.  There would likely be some justices inclined to support the university but a loss before the Supreme Court would make this is national precedent — something other universities will not relish.

Even as it stands, the ruling is a considerable victory for this group and its counsel, Eric S. Baxter and Daniel H. Blomberg of The Becket Fund for Religious Liberty as well as Christopher C. Hagenow and William R. Gustoff  of Hagenow & Gustoff, LLP.


Here is the opinion: BLinC v. University of Iowa

267 thoughts on ““The Defendants May Pick Their Poison”: Christian Group Scores Major Legal Victory Against University of Iowa”

  1. If you are so bent out of shape over centuries of history of religious leaders imposing their will on others by force to bloody outcomes – why do you think that it is acceptable to do so – if only you change to different gods ?

    I need not particularly care about your personal views or values – whether you claim them to be religious or not, so long as you do not seek to impose them by force on others without sufficient justification.

    I spent many years of my life debating christian fundimentalists. The only way they are distinguishable from the modern left – is they are more sincere and less likely to use force.

  2. Am I free to choose to marry ?
    To choose to have children ?
    Having married am I bound to that relationship forever ?

    If I am born into a family – can I move elsewhere and break my links to siblings, parents ?

    Each of these and myriads of others are INDIVIDUAL choices – they are choices ABOUT our social relations.

    Everything you call part of man’s social nature – is a CHOICE.

    The fact that most of us make similar choices does not change the fact that it is a choice.

    Or are you saying that I have no choice regarding marraige, children, family, etc ?

    You do not seem to grasp that so long as I as an INDIVIDUAL am free to make CHOICES about what you call mankinds social nature,
    that social nature is SUBORDINATE to our INDIVIDUAL nature and our INDIVIDUAL rights.

    You have lost this argument incredibly badly – just let go.

    Your claim is not merely fundimental error – it is OBVIOUS fundimental error.

    You conflate common choices with requirements.

    Dogs are the most popular pet choice – that does not mean that humans require dogs.

  3. “We are social animals because we do not exist outside of social groups and with socially transmitted culture upon which we depend for survival.”

    What crap. There are innumerable example of individuals existing and surviving on their own.

    And the culture argument is complete nonsense. How is ti that we depend on culture of survival ?

    If my family was remiss on sharing the recipe for irish stew – will I perish ?

    At best a miniscule portion of culture has anything to do with survival. The rest is inherently the same as Art and Music – it is something we value – it enriches our lives. It has nothing to do with survival.

    “The fact that there are regional and national cultures is not in conflict with this”
    Of course it is. You are arguing that culture is a survival requirement. That is nonsense.
    To encompass the requirements of survival in culture – you need an incredibly broad definition of culture, and you still ending up with 99% of culture having nothing to do with survival.

    You seem to have a complete inability to distinguish between a value and a need.

    Humans NEED, air, water, food to survive. They do NOT need Taco’s, Art, Hip Hop.

    The entire debate we are having is because you completely confuse needs and wants.

    But then this is a typical leftist intellectual failure.

    “He is correct that we lived in tribes before nations, and I think he would find that the idea of “individual rights” would be completely at odds with the necessities of survival, and modern luxuries like privacy completely non-existent. ”

    You are completely ignorant of reality. Privacy is not a modern luxury – it is human value from the start.

    We sort of agree that tribes precede nations (as well as clans). But you miss the fact that families precede Tribes.

    Nor are families the fundamental human unit. The individual is.

    From the start through today we CHOOSE to form families. It is not a requirement. Having chosen them – we often choose to leave them.
    We choose to join tribes, and we chose to leave them.

    You fixate on culture – just about every culture has a coming of age ceremony in which adolescents CHOOSE to join the tribe – or community.

    You confuse norms with requirements.

    No one is arguing that people tend to do better within social units – though I would note that is again a NORM not something immutable.
    Inarguably the extent to which individuals thrive in larger social units is variable. Some do not flourish with myriad social connections. Others decline the more social interactions them must sustain. Put simply – some of us are introverts and some are extroverts.

    You are trying to make extroversion into an immutable human attribute.

    Individual rights are NOT a modern accomplishment. They are part of what intrinsically separates humans from all other animals.

    “but let’s not kid ourselves about there origin and their disposability in times of crisis.”

    Yes, lets not kid ourselves – we can survive – without the trappings of your “society”

    Just look at what YOUR experts demanded of us in this crisis – to LIMIT everything SOCIAL.
    As the SOCIAL was a threat to our survival.

    You have everything so obviously upside down and you are blind to it.

    Covid – and nearly all disease is a price we pay for being social.

    It was self evident to absolutely everyone from the very start that if we could terminate all social interactions for about 14 days we could completely eliminate Covid. In fact we could eliminate Covid if we could merely isolate groups for short periods of time.

    Covid – YOUR “crisis” is a creation of the social values that you claim are intrinsic.

    I would further note that is a theme throughout history. Human efforts to scale their social interactions have inherently threatened humanity.
    While history also shows that we ultimately overcame those threats – we have LEARNED how to live safely in ever larger social units.
    That is CLEARLY a CHOICE, not something intrinsic.

    Large human social structures are NOT intrinsic – they are NOT natural. They are something we have accomplished via technology.

    Humans living in large cities is no different from humans traveling by air or car. They are NOT intrinsic. They are NOT natural.
    They are NOT fundimental.

    We agree that tribes preceded nations – humans did not form anything larger than a village during 90% of human existance.
    The city – at the very smallest scale is about 8,000 years old – it is MODERN.

    You claim that individuality and privacy are modern. I wish I could transport you back 50,000 years. Much of early human existance was solitary. Hunter Gatherers spent most of their lives alone. We shifted to hunting in groups LATER to hunt larger animals.

    Nearly all aspects of what you call mans social nature are LEARNED.

    Worse still for your argument they are all DEPENDENT on technology. Without tools – even the most crude ones, there is no benefit to cooperative human behavior.

    Modern cities can not exist without millions of elements of technology that you take for granted.

    Even the very earliest cities did not come about until the advent of agriculture. You can not have a city of several hundred people – much less several million, without rural farmers to feed city dwellers. Worse still for your argument – until only a few centuries ago, 90% of people were RURAL Farmers – we did not have the ability to feed large numbers of people with small numbers of farmers.

    Today about 1% of the people feed the remaining 99%. That is an acheivement of technology. Should that technology fail – the “social” 99% of us will STARVE.

    You have a real problem confusing wants with needs, values with requirements.

    This “social” argument of yours is complete horse$hit.

    It fails many many different OBVIOUS ways.

    Human social relations are a VALUE – nothing more.

    Your cultural argument should have made that clear – Culture is important we VALUE it.

    Humans have created art – and likely music for as long as we can tell – obviously it is VALUED by humans.

    But it is NOT something we NEED, it is something we WANT.

  4. You can define what it means to be a social animal however you wish – but the broader you make the definition the more meaningless it becomes.

    You are arguing that the “social” is a fundamentalist requirement of humans – rather than just a value.

    In that you are inarguably wrong.

    In every social context humans make choices whether to engage socially or not.

    We choose to marry. We choose to terminate marraiges, We choose to have children.
    We choose how close to be with familily – particularly extended family.
    We choose how close to be with our neighbors.
    We choose how close to be with our friends and how large a pool of friends to have.
    We choose what groups, churches, etc. to belong to.

    And each of us makes these choices differently.

    If you accept that human social interaction is a choice – something many humans value – though not to the same degree,
    if that is your idea of humans as a social animal – then we are in agreement.

    The FACT that human social interactions are entirely by choice – they are not instinctive requirements as with ants and bees,
    obliterates your claim that humans are social FIRST and individual SECOND.

    We CHOOSE – that is that act of an INDIVIDUAL.

    The foundation of human society, is FREE WILL and INDIVIDUAL LIBERTY.

    Beyond that – I could care less about your “definitional” games.

  5. This is very interesting.

    “Regardless if this is of interest to you – there are centuries of philosophical debate by people far smarter than you or I.”

    There are indeed. Who do you like to read? I like Maimonides and Cicero, among others.

    “If there is a god, the realtionship of that god to man is of great importance.
    Whether that is knowable is a different issue.”

    A relationship of such great importance should be made a priority.

    Our half of the relationship we know.

    What constitutes ‘knowable’?

    1. The specifics are not important – so longs as one does not cherry pick the great minds of the past.

      I have been influenced at different times by many different great minds of the past. But you could be totally unfamiliar with those that have influenced me and be steeped in others I am completely unfamiliar with and we could still read very nearly the same positions.

      I used to have great interest in philosophy of religion, and I could have cited Buber, Kierkegard, or Kant in great detail. But that was long ago, and mostly I am not interested. I accept that we can know little of “god” beyond what we know of ourselves.

      Someone else here posted that some physicists think that we are all living in a simulation. While I do not accept that – it does not matter.
      There is no difference between beleiving we live in a simulation and beleiving in god.

      Even if all we are is snippets of code in some super computer, We still have free will, We still live and die. We still experience a reality that follows rules – even if we do not fully understand those rules. We still feel pain and love.

      One of the things that several of the trolls here do not seem to grasp is that an infinity of other possibilities does not change the reality we exist in – even if that reality is not “real”. it is our reality. It is not fully knowable, but it is also not completely arbitrary and capreicious.
      We do not get out of this reality without dying. and while we are in it what we do not yet know does NOT falsify what we have spent 150,000 years learning.

  6. My God this country is screwed. How do I get out of here? the stage is almost bare now. I can see the brick wall. They are moving the last pieces of furniture. Frank was right.

  7. Wow! Progressives that run our nation’s universities are self-absorbed hypocritical scum bags! What a shock-not!

    1. Late wasnt it. Because they liked what she was saying. They’re hypocrites. They could have taken prompt corrective action but they liked what she was saying.

      They will pay her lawsuit off after it fizzles for a year or so.

      Yale’s a bigger foe of the people than this nasty socalled Doctor by far.

      Sal Sar

  8. Thanks everyone. This has been a very interesting exchange. As for the University appealing, it probably will not, for the reasons stated, but the individual defendants will have to. They are now open to damages.

  9. We’re not fighting for the First Amendment, we’re fighting for survival.

    Maybe people think it’s not come down to that yet,? Even after a year of a deadly virus which isn’t for the overwhelming majority, who are yet told to stay home, don’t work, don’t go to church, don’t do this or that or whatever based on the supposed science that isn’t or the experts who aren’t. And now get that shot which will make you feel like crud and not stop you from getting the corona and yet it is supposedly a necessity and a duty. Well, if you swallow all those notions, here come some more, and you are easily tricked.

    First Amendment is a battleground, but it is not the war. We can win or lose on that ground, but this is not where the fight is heading in the end. The First amendment has been shown to be overblow and more often than not, a footnote of our history, besides the point of what’s happening now.

    Nor will it come down to some other liberty like 2d amendment. Oh sure, the guns, but what will any one person do with them for bad or for good. Not much. No in the end, every question is a political question, and every battle is part of the war. And the forces array in large numbers and only rarely do guns matter. Most often not. Guns are often a footnote, an irrelevance, whether the long cherished freedom in question comes or goes, it is only one battleground. They are no substitute for doing the easier things which need to be done today. They’re almost a distraction, with patriots dreaming of some far off shooting conflict, as their opportunities are sliced to pieces before their eyes. Stop waiting for the big showdown, the showdown is a thousand little ones, day after day.

    The combatants are not clear they are hidden. We think so and so is an adversary when often they are not. We see some as our foes when they could be allies. We thing some slogans are important when they are not.

    If you want to thrive in this struggle, eschew inflexible thinking, look for opportunity, do not be triggered by epithets and empty slogans, not in either direction. Do not be woke– and yet, awaken!

  10. OT

    1. “China Flu, 2020” was deliberately released by China, from its Wuhan Institute of Virology, to reduce its population of elderly people as China is doomed by its one-child policy from the past. China will move further in the future to reduce its elderly population. China’s population is terminally out of balance by its overabundance of old people – China has no workforce or Social Security and Medicare to address this segment of the population.

    2. “China Flu, 2020” was released 9 months prior to the U.S. presidential election to support the malleable Joe Biden and remove President Donald J. Trump, China’s adversary and nemesis.

    “The end may justify the means as long as there is something that justifies the end.”

    – Leon Trotsky

    The Chinese Communist Party is not hindered by law or morality; by brutality and violence.

    It is merely a tool; a means to an end.

    1. George, you’ve said that you believe women should not have the right to vote and made it clear that you’re a white nationalist. No one should take you seriously.

      1. Thank you so much for reading, comrade.

        Your motto: If you can’t dazzle ’em with brilliance, baffle ’em with bull—t.

        Am I right?

        For your edification, America’s full “fundamental transformation” into communism has been coincidental with the gradual implementation of the 19th Dumbmendment over the past 100 years. That is not a “good” thing unless one is a communist such as yourself.

        Additionally, I would not have been allowed to vote in the Founders’ America – there were strict and abundant vote criteria (as must be the case to achieve rational government) at the time of the 1788 election which experienced a turnout of 11.6% by design. Did you get that, 11.6%? A republic enjoys “…a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law,” per Merriam-Webster. America was established and intended to be a restricted-vote republic, never a one man, one vote democrazy, which always ends in dictatorship.

        Interestingly, the vote actually matters little because the Constitution imposes severe and strict limitations and restrictions on Congress, all of which have been ignored, most destructively by the judicial branch with emphasis on the anti-Constitution Supreme Court.

        America requires much corrective action.

        1. Unfortunately, people can no longer even distinguish between a democracy and a republic. It’s a fine but important distinction, and you’re right…it has been ignored. Over and over.

          1. The US is both a representative democracy and a constitutional federal republic.

            1. And you know this from ?

              Does the supreme court pull out some document other than the constitution as the final authority ?

              The word democracy does not show up anywhere in the constitution, or bill of rights.
              It is not found in the decalaration of independence.
              It is not that common used by our founders and when used by them it is either used as a synonym for representative govenrment OR disparagingly.

              Your claim that we are a respresentative democracy – would in the founders words be a “representative, representative government. ”

              i.e redundant.

              Regardless. the most fundimmental issue is NOT about the word democracy. it is about the slight of hand being used by those who call the US a democracy. If “democracy” means majortitarian government – either structurally or philosophically – then we are not.

              The constant bleating that this is a democracy – is an intentional effort to impose majoritarian government – which is NOT constitutional.

              1. “And you know this from ?”

                From the definition of representative democracy and the facts that the power in our government derives from the consent of the governed, and that we directly elect our members of Congress, state representatives, and local representatives. You’d know it too if you bothered to deal truthfully with those facts.

                Oxford English Dictionary –
                ” a. Government by the people; esp. a system of government in which all the people of a state or polity (or, esp. formerly, a subset of them meeting particular conditions) are involved in making decisions about its affairs, typically by voting to elect representatives to a parliament or similar assembly …”

                We are both a democracy and a republic. Only ignoramuses or deniers reject that.

                “The word democracy does not show up anywhere in the constitution, or bill of rights. It is not found in the decalaration of independence.”

                So what? Lots of words don’t appear in the constitution, the Bill of Rights, or the DoI. Are you going to deny that people have a right to privacy because the word “privacy” doesn’t appear in any of those texts? The concept of democracy appears: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

                Your “constant bleating” that we are not a democracy is just one more installment of the many examples of you not choosing to be truthful.

                1. States set vote criteria.

                  As “original intent,” the criteria set by the Founders in 1788 were, generally, male, European, 21 with 50 lbs.Sterling or 50 acres.

                  Turnout for the 1788 election was 11.6%.

                  “Democracy” has been “qualified” and restricted, as a republic, since inception in Greece, through perpetuation in Rome, up to the establishment of the United States of America.

                  One man, one vote democracy, which always ends in dictatorship, was initiated by “Crazy Abe” Lincoln and his communist successors.

                  California is a one-party communist state dictatorship which Biden swore to replicate nationally.

                  De jure freedom of speech, press, religion, assembly and the right to private property have been de facto nullified.

                  The entire American welfare state is unconstitutional and was imposed by the communist (liberal, progressive, socialist, democrat, RINO) dictatorship.

                  “the people are nothing but a great beast…

                  I have learned to hold popular opinion of no value.”

                  – Alexander Hamilton

                  “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

                  “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

                  – Alexander Hamilton, The Farmer Refuted, 1775

                  “A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”

                  – Alexander Tytler

                2. “And you know this from ?”

                  “From the definition of representative democracy”

                  You are making the same error that SM made some time ago.

                  We go from meaning TOO definitions, not the other way arround.
                  This fallacy has resulted in the modern corruption of dictionsaries.
                  This has been such a problem that people are actually correcting paper dictionaries from the 60’s to preserve the meaning of words.
                  I would note that this is both something Orwell warned of and demonstrated in his Dystopias

                  As I noted – our founders did not use the word democracy anywhere in our founding documents, and if they used the word representative – they did not use it as you intend.

                  You can argue from defintions – when words as defined cover all possible meanings leaving no holes.
                  They do not.
                  Equally important the mangling of the definition of democracy is both deliberate and transparently misrepresentation.

                  You constantly argue that Biden won the election because more people voted for him. That is democracy. That is NOT our government.
                  As it is not – then we are not representative deomocracy.

                  At the same time – though that is not our government – you clearly want it to be. And you intend to make it that if given the chance.

                  So you are calling the US what it is not, with the hope of making it what it is not.
                  And most likely without going through any legitimate process to get from where we are to where you want.

                  That is tyranical – it is not even democracy.

                  “the facts that the power in our government derives from the consent of the governed”
                  No, ALL governments derive power from the consent of the governed.
                  Jefferson was not stating an aspiration, he was stating a fact.

                  “and that we directly elect our members of Congress, state representatives, and local representatives.”
                  That make us a republic.

                  “You’d know it too if you bothered to deal truthfully with those facts.”
                  I know that this country is a republic. The constitution guarantees that.

                  “We are both a democracy and a republic.”

                  Provide an example of a government that is a democracy but not a republic – by YOUR defintions.
                  Provide and example of a government that is a republic, but not a democracy – by your defintions.

                  Your argument is essentially that a republic and a democracy are the same.

                  Even if that were true – that is NOT what YOU seek.
                  You have repeatedly made clear that you want and will strive to get majoritarian government.

                  THAT is democracy.

                  In a democracy there are no rights. The will of the majority settles any question.
                  In issue after issue – that is exactly what you seek.

                  You tell me that Biden won the election – because the purported majority wants that.
                  But in the US – the majority is not entitled to get whatever it wants.
                  We do not elect presidents by majority vote. In fact for most of our history we did not elect anyone purely by majority vote.
                  All those senators, representatives, legislators, etc. were elected by the vote of only elegible voters.
                  In 1788 that was NOT most people It was not women, it was not slaves, it was not even most free whites.
                  Even today it is limited to citizens – unless the left gets its way.

                  And as they are busy changing election laws to stay in power – they next time the left is feerful of losing elections – they will likely make 15 year olds eligable to vote – or mexicans and europeans.

                  Regardless, the point is this govenrment was not a democracy, and though you have certainly made it more democratic – it still is not.
                  But we will agree that making it a democracy is your goal.

                  But you are not entitled to accomplish that through word games.

                  “Only ignoramuses or deniers reject that.”

                  Ah, now this idiotic “deniers” nonsense.

                  Regadless – I “deny” that you are correct – about most things.

                  ““The word democracy does not show up anywhere in the constitution, or bill of rights. It is not found in the decalaration of independence.”
                  So what?”

                  Really ?
                  First it is xtal clear that you consider it incredibly important that the US is a democracy. You are practically soiling your pants over it.
                  So you are saying that something that is so incredibly important to you does not even get a mention within our founding documents – and yet is still true ?

                  The word Monarch does not appear in the constitution – are we a monarchy ?

                  The declaration of independence is the document justifying the existance of the US, The constitution is the document that litterally defines our government.

                  If an architect puts together the drawings and specs to define a house – would he do so without ever using the word house ?

                  “Are you going to deny that people have a right to privacy because the word “privacy” doesn’t appear in any of those texts?”
                  The constitution did not create privacy. It merely recognizes it as a right. Further – it specifically recognizes that there are myriads of rights and that those rights are NOT enumerated in the constitution and bill of rights.

                  The constitution is NOT a list of the rights of people. It is of the powers and structure of government and its constraints.

                  “The concept of democracy appears: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.””
                  Nope. Though claiming otherwise – East Germany was never a democracy. The GDR collapsed when Millions of people filled the Alexander Platz and withdrew their consent from one of the most totalitarian modern western governments.

                  “Your “constant bleating” that we are not a democracy is just one more installment of the many examples of you not choosing to be truthful.”
                  No it is a demonstration that you are not factual and that you deliberately mangle words – and your own arguments are proof that you are not alone.

                  This is simple – I do not care how many defintions that you find that pretend that democracy and republic are interchangeable – they are not.

                  Frankly your argument is idiotic – YOU do not beleive the US is a democracy – you are inarguably trying to change it into one.
                  The arguments you make all the time are arguments to bring the country small steps closer to being a democracy – how can we move closer to something that you claim we already are.

                  You are not merely trying to destroy the meaning of words, you are trying to destroy the meaning of ideas.

                  As I noted before one of the fundimental problems with democracy is that there are no real rights. Everything is at the whim of the majority.
                  To be clear – that need not be a direct democracy.

                  “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.”
                  Madison – Federalist 10.

                  The word Democracy is only used rarely in the Federalist papers, which after the declaration and constitution are the primary references for the intentions of our founders.

                  Every single one of those references is specifically to point out that the US is NOT a democracy – it is a republic.

                  Conversely the world Republic is used throughout the federalist papers – both to contrast the government the constitution creates with a democracy, and to directly identify the form of government of the united states.

                  1. You’ve just made a bunch of false claims about me, and I’m not going to waste my time engaging with them other than to note this.

                    1. 1). You are posting as anonymous – there is no “You”.
                      2). Reread my remarks – it is a long list of facts and arguments.

                      In hundreds of words – there are very few about YOU.

                      What claim about you have I made that is false ?

          2. While a republic is superior to a democracy – the fundamental issue is that government is limited.

            A government that actually confined itself to the real constraints of the US constitution (as opposed to the structure defined in it) would be superior to what we now have, or any democracy. even if the form was a dictatorship or monarchy.

    2. Communists have a moral and ethical obligation, nay, duty, to act, without reservation, for the benefit of the collective.

  11. I recognize that the 1st Amendment preferences religious beliefs, but as an agnostic, I sometimes get tired of religious beliefs getting more protection than non-religious beliefs.

    1. I, too, am an agnostic. Nobody actually believed in Zeus anyway.

      Thomas Jefferson didn’t prefer religion. He feared it. His point was to create a bright line between church and state, and to do that, both have to be restricted. In some respects, this might seem to prefer religion, but in other respects, it clearly works against religion; for instance, no religion in state schools.

      I think if Jefferson saw what was happening today, he would be appalled at the schools becoming temples of secular dogma, i.e. woke, but in his time, religion was the overbearing orthodoxy, not utopianism.

      1. Diogenes, when you measure it against history, the First Amendment was strongly delimiting religion, which at least until Westphalia, had a claim to authority on all of society including the state.

        The First Amendment acted to cancel that for the United States. It definitely worked against religion.

        But what was it acting for, then, at the time? What was the superior principle?

        other “Rights” such as they were

        for every other right, we should understand, they are not equal. Each quantum of right, is only worth as much as it is. A right to get a driver’s license if you meet the standards of law, is a right, but it has an economic value. The value is the cost of a 24/7 chauffer, which is probably, let’s say, at least $120,000 a year. Maybe with things like “Uber” the value of a license has gone down.

        For you and me, that’;s pretty important.
        For the guy with a billion, it’s not. He can afford that chauffer.

        I own one dolllar, and my quantum of property right in that dollar is only worth that much.
        You stack his billion up against mine, dollar for dollar, they are “Equal”

        But we are not equal in our property rights as a whole. In every instance when we talk about property rights, the individual who has significantly more, is, necessarily, superior in collective “rights’ to us

        This is a reality of law that was well known and understood by lawyers long before 1789. But understand, our “Bill of Rights” does not account for it.

        See over here is the little pile of rights that include property, religion, free speech, whatever. What fluctuates is mostly not religion , it is property.

        Over there is the guy with a lot of property. The billionaire. His “rights’ taken as a whole including property, are worth a billion more than ours.

        So, that’s a profound inequality. But, there are good reasons to have it that way. I am not suggesting we end the legal institution of property rights. We know that would end in disaster. I have cmplained a lot about billionaires but in general i am not complaining about financial inequities at the low and middle end of the spectrum. History has proven those are mostly impossible to eradicate and in so doing, more harm than good is done.

        But history has not long had “billionaires” at all. This is a question of scale that arises only in the modern era and contemporary times.

        I am suggesting we quit kidding ourselves that we are “Equal” to billionaires. We are not. I have explained how we are not and it is measurable. To ignore the value of his huge pile of property rights compared to our own small one, is to ignore fact. And yet, in America, that’s what we habitually do. Even the Left which grouses about economic matters– when they are not busy advancing irrelevancies like lgbtq+ but even when they talk about economic inequality, they rarely see it in those terms.

        And it matters. He has one vote and so do i. We are equal, hurrah! Big deal– he a fellow like Bezos, can buy a major newspaper like Washington Post, and have it gin up millions of votes with influence. His money matters; our economic inequality is very surely translated into significant political inequality. If we do not reckon the scale of his power, then we ignore facts which easily prove we are anything but “equal,” and we evade the reality that in the long run, government is generally and surely mostly working for him not us. We are a trifle to the system one by one, but if the one is a billionaire, then oh how hard how long and how assiduously does this system work for him!

        So here is my point. All this First amendment stuff, all these precious freedoms, they occupy very little importance to the government. We see cases like this as important. The state does not. The state is mostly occupied with protecting life, then property and contracts and transactions. Civic freedoms like those named in the First amendment, are increasingly trivial, and we can see that in the COVID crisis they were swept aside by the governors during lockdown with ease.

        The US system is fundamentally one which protects 1. life. 2. property. 3. order. Everything else is a distant afterthought.

        One could even argue that life, at times, is an afterthought too, depending on how it’s defined!

        Sal Sar

        1. “The First Amendment was strongly delimiting religion, which at least until Westphalia, had a claim to authority on all of society including the state.”

          Agreed, but Jefferson didn’t have to contend with utopianism like we do. The Thirty Years War was a holocaust, but modern wars have been even more devastating and had little to do with religion.

          Fundamentally, how is religious dogma different from secular dogmas? Is the 1st Amendment arbitrary because of Jefferson’s historical filter?

          1. “Fundamentally, how is religious dogma different from secular dogmas? ”

            GREAT QUESTION

            one we should consider over and over again
            you really hit at the heart of the matter.

            Sal Sar

          2. “Fundamentally, how is religious dogma different from secular dogmas?”

            The former has constitutional protection and the latter may not (depending on the specifics). Also, people may be more likely to say that religious dogmas are the word of God and so cannot be challenged than they are to say that secular dogmas can’t be challenged.

            There may be other practical and legal differences, but those are the ones that come to mind.

        2. Locke’s formulation was Life, Liberty and property.

          Order is a consequence of protection of those.

          Further that protection was specific – there is no right to life, liberty or property.

          There is a right to be free from harm by another to your life liberty and property.

          This is the difference between negative and positive rights.

          Government has no role in positive rights.
          No one else alive owes you any positive duty.
          No one owes you life,
          No one owes you liberty
          No one owes you property by default.

          The duty each of us is bound to and government to enforce is that our life, liberty and property will not be harmed or taken by another through force or fraud.

          That is all. That is also the only regime that government can sustain.

          We are not equal – that is laughably stupid.

          We are equally barred from harming the life liberty or property of others.

    2. No, it doesn’t.

      You’re not forced to pray in schools, forced to swear on a Bible, forced to believe in anything, confess any god. That these protections are of little consequence today is because no one is imposing religion on anyone in the US today.

      The work of the 1st amendment, like all rights, are visible only to the potentially prosecuted. 100 years ago that was a school teacher teaching evolution. Today it’s a Christian group trying to get equal protection under the Law.

    3. As the article and the decision make clear, in this particular case there had been many carve-outs in the policy for other student groups, but not for the traditional Christian group. You point is therefor not on point here.

        1. Honestly, your point is so broad, I doubt you can quantify it, which is a problem because you’re making a quantitative statement:
          “religious beliefs getting more protection than non-religious beliefs.”

          1. It’s easy enough to quantify: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is part of our Constitution, whereas Congress can prohibit the exercise of nonreligious beliefs.

            1. I think Congress can prohibit the exercise of nonreligious beliefs and the Supreme Court can prohibit the free exercise of religious beliefs under the higher principle of separation of church and state.

              1. No, the government cannot prohibit the freedom of conscience. We have a natural right to believe whatever we want to believe. What we don’t have a right to do is individually, collectively or through government, is force others to do something that violates their freedom of conscience.

            2. I posed a question at 4:20 PM. I would appreciate your view of it. I think that question gets to the heart of your question, but I could be misunderstanding you.

        2. How about this as a broad statement: there are religious protections that are not available to corresponding secular beliefs. Then you have to answer whether those religious protections should be denied or extended to secular beliefs. That should get pretty specific, at which point, there’s a basis for discussion.

          Do you have any specifics?

          1. Here are a couple of examples.

            In Sherbert v. Verner, “The Court examined whether the state of South Carolina violated the Free Exercise Clause of the First Amendment in denying unemployment benefits to a person for turning down a job, because it required him or her to work on the Sabbath. The Court ruled 7-2 that the South Carolina statute did impede a person’s right to freely exercise religion, in violation of the Free Exercise Clause. (Citation: 374 U.S. 398)” (quoting a description from The Bill of Rights Institute). In contrast, if someone had turned down the same job for a non-religious reason that’s just as meaningful to that person, the state could legally deny unemployment benefits.

            There are religious exceptions for drugs like peyote and hoasca that are otherwise illegal — it’s legal for someone to use these for religious reasons but not for non-religious reasons that are just as meaningful to someone.

            1. Good examples. Our lawyers will have to address those. Above my paygrade.

              1. So the anonymous makes a good point, but so what. Of course laws can be made which target beliefs. Ever heard of Civil Rights laws that target racism? So-called Racism is a belief. People think the First Amendment means more than it does. And a hundred years ago, it meant a heck of a lot less than it does today. Before the Civil war even less because it was not “incorporated” and you still had some established churches among the states.

                When it comes to establishment clause, I think it’s an overblown socalled freedom. Is Costa Rica doing poorly because its official state religion is Catholicism? How about in Germany where they have official state taxes to support both Catholic and Lutheran Churches. There’s a lot more to be feared today than this worn out old boogeyman of the Enlightenment.

                Japan has a state religion too. They have an Emperor that they believe is descended from the sun-goddess Amaterasu. The constitution recognizes his limited and yet mostly ceremonial role as head of state. It does not call him a divinity anymore, Meiji era did away wit that, but we all understand, the Japanese constitution of today says what it does, because the Americans dictated it under force of occupation and continuing patronage.

                what about established religion in the Middle east? Israel was organized as a purely secular state, and religious jews opposed it early on. Now they more or less control it, and it has the character of a Jewish state, secular or not. But are the 1/5 of the population who are non-Jewish citizens of Israel really oppressed? Not according to what I have read.

                Islamic countries, secular or not? America has been backing the Saudi theocracy from the get-go as far as I can tell. And it opposed numerous secular Baathist regimes to this day. Egypt under Nasser, Iraq under Hussein, and Syria under Assads. Syrians got less to worry about in Syria than they do in a lot of their neighbors for many decades. Decades ago Christian Arabs had to run away out of Turkey due to government oppression, and they ran to Syria where they prospered. Turkey? That’;s our NATO ally., Turkey, and now it’s run by a Islamist party where before it was run by a secularist regime. But the geopolitical facts that got it into NATO in the first place have kept it there.

                First Amendment has ZERO effect on what America chooses to do in foreign affairs. And oh, how foreign affairs do matter! The USA can legally back any theocracy it wants. No matter how oppressive or ridiculous. Like the Saudis lets say. For any reason. So if the socalled freedom of religion is so important, then, why did it NEVER apply to foreign affairs? Answer is, because nobody with power ever wanted it to, that’s why! Because if they wanted it to, then they would have concocted some laws or cases to make it that way.

                Guys, please, put aside the childish bromides. Every government exists the way it does because of history and power. Official slogans are not sometimes false, they are USUALLY false. America is no exception.

                Sal Sar

    4. The fault is not in the protection of religious beleifs. it is in the lack of equal protection for other rights.

      Our founders made clear rights are broad and many, the powers of govenrment are few and constrained.

      With respect to this specific issue.

      If UI receives government money directly – it is bound by the same first amendment constraints as government.
      If UI is a government entity the same is true.

      Turley references the UI policies. Those are relevant because even if UI is entirely private – they are bound to their own polices – as students have contracted with the college for an education and are owed what is promised – including the benefits of that schools policies.

      If UI is a strictly private institution it can recind these policies and in about 4 years act outside them.

  12. It always boils down to a group of A-holes trying to force their beliefs onto others and demanding that they be granted legitimacy by the powers that be.

    1. Ok, Natacha, so what does free association mean in your idea of a perfect world? Let’s hear it.

    2. So who are the A-Holes? If you’re referring to BLinC, how do you distinguish them from the Colorado Civil Rights Commission or Autumn Scardinia? Or are the A-Holes the staff of the University of Iowa?

        1. If somebody’s paying here for her words, such as they are, then she’s running a great scam and may be smarter than she seems.

  13. “The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.”
    Now there, my dear lawyers-in-training, is an opinion that ought to be carved above every woke college bureaucrat’s door. Sue the bastidos and give them some skin in the game.

    1. This quote is from the DISSENT. The court actually held that the free exercise right was NOT clearly established in this context. The court’s clearly established holding was limited to the free speech and free association rights.

      1. Daniel:

        “This quote is from the DISSENT. The court actually held that the free exercise right was NOT clearly established in this context. The court’s clearly established holding was limited to the free speech and free association rights.”

        It’s actually from Circuit Judge Kobes who dissented in part and concurred in part (p.29 et seq): His comment was in support of the majority when he wrote “I join the well-written majority opinion in denying qualified immunity on BLinC’s free speech and association claims, but I write separately because I think the law is clearly established on its free exercise claim, too.” Thus he agreed that qualified immunity was not appropriate here in perfect unison with the majority view which he summarized as quoted above. He differed on the issue of whether the law of free exercise was “clearly established” which the majority did not find.

        It’s important to understand what was at issue in this appeal which means knowing what’s not appealed:
        The majority spelled this out:

        “We note at the outset what is not at issue in this appeal. The University
        defendants have not appealed the district court’s holding that they violated BLinC’s
        First Amendment rights to free speech, expressive association, and free exercise
        through their disparate application of the University’s Human Rights Policy. Instead,
        the focus of this appeal is limited to whether, for purposes of qualified immunity,
        the law was clearly established that the individual defendants’ conduct violated those
        rights.” (p. 15)

        For non-lawyers out there, for free exercise denial to give rise to qualified immunity from damages, the law of such must be “clearly established” for the administrators to follow.

        1. The quote comes at the end of Korbes’ explanation of his view, dissenting from the majority’s, that the free exercise right was clearly established and expressly refers to the differential treatment of religious groups which that right does not permit. The quote is therefore unrelated to his agreement with the court that the free speech and free association rights were clearly established.

          1. It’s hard to accept that Korbes is dissenting when he agrees with the majority holding. Apparently, he reaches that same conclusion on two of the the three grounds so it seems more like an issue that didn’t have to be decided. I think it looks more dicta than dissent. Either way, it’s germane to JT’s conclusion that the court was sending a shot over the Hawkeyes’ bow.

            1. Fair enough, though this particular admonition was not from the Court, just from Kobes.

              Unrelated question. Does the VP get to vote on the establishment of a precedent under the Senate rules? This is the only way the cloture rule can be avoided by majority vote, since a change to the rule itself requires 2/3.

  14. “We must respect the other fellow’s religion but only in the sense that and to the extent that we respect his theory that his wife is beautiful and his children smart.” H.L. Mencken

    1. Just as I respect Joe Biden’s theory that the migrant children from Honduras are our future!

  15. The way you strike back at the Woke, Social Justice Groups, Radical Lib’s, nutty Universities is HIT them in the POCKET BOOK and in the Courts.

    1. Liability Insurance will just cost the students more and in light of the new “woke” professors, why would any insurance company want to insure these idiots? The risk would be too high.

      1. I had to buy some in my last job – agency paid half. Problem is that the insurance would not cover acts outside the scope of normal business or some such stuff. That clause alone might make them reconsider some actions.

    2. Or just to quit trying to stuff a woke ideology down everyones throat by force.

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