Private Discriminatory Association

Should private groups be able to exclude members they do not want on the basis of criteria deemed invidiously discriminatory by the government? The conflict between the freedom of association and Antidiscrimination Laws has its roots in the 1950s and 1960s. The Court’s protection of the freedom of association began in earnest in NAACP v. Alabama, 357 U.S. 449 (1959), in which the Court held that the First Amendment protected the NAACP from having to disclose its membership list to hostile Alabama authorities. At the same time, Antidiscrimination Laws at the state and federal levels gradually expanded in two important ways. First, they began to cover not only employment and traditional public accommodations (like inns and common carriers), but also large private clubs where business networking occurs. Second, Antidiscrimination Laws also expanded to prohibit more types of discrimination.

These two legal developments—the rise of the freedom of association and the expansion of antidiscrimination law—crossed paths in a series of cases starting in the 1980s. In Roberts v. United States Jaycees (468 U.S. 609, 1984), the Court held that the all-male Jaycees could be forced under state antidiscrimination law to admit female members. The Court held that infringement of a group’s associational rights could be justified by ‘‘Compelling State Interests’’ (like eliminating bias against women) unrelated to the suppression of ideas that cannot be served through means less restrictive of the private group’s freedom. Similarly, in Board of Directors of Rotary International v. Rotary Club (481 U.S. 537, 1987) and New York State Club Ass’n v. City of New York (487 U.S. 1, 1988), the Court held that large private clubs organized largely to promote commercial endeavors could be forced to comply with Antidiscrimination Laws applied to their membership.

However, in two more recent cases the Court upheld the right of a private group to exclude gays. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (515 U.S. 557, 1995), the Court upheld the right of private organizers of a St. Patrick’s Day Parade to exclude a contingent marching behind a banner identifying themselves as an Irish gay group. In Boy Scouts of America v. Dale (530 U.S. 640, 2000), the Court upheld the right of the Boy Scouts to exclude an openly gay scoutmaster. In both of these cases, the Court stressed the freedom of the group to send its own messages and the impairment that inclusion of gays would have on the communication of that message (even if the group simply wanted to say nothing about homosexuality).

The Court appears to be adopting a bifurcated approach toward private discriminatory association. When the private association is organized essentially for commercial purposes (for example, as a forum for business networking), the Court has held that the group’s expressive interests are weak and that the state’s interest in eradicating discrimination is strong. When the private association is organized essentially for expressive purposes (for example, transmitting moral values to young boys), the Court has held that the group’s expressive interests are strong and that the state’s antidiscrimination interest is weak.

DALE CARPENTER

References and Further Reading

• Bernstein, David E., Defending the First Amendment From Antidiscrimination Laws, N. C. L. Review 82 (2003): 223.
• Brody, Evelyn, Entrance, Voice, and Exit: The Constitutional Bounds of the Right of Association, University of California Davis Law Review 35 (2002): 821.
• Carpenter, Dale, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, Minnesota Law Review 85 (2001) 1515.
• Hunter, Nan D., Accommodating the Public Sphere: Beyond the Market Model, Minnesota Law Review 85 (2001): 1591.
• Koppelman, Andrew, Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination, Cardozo Law Review 23 (2002): 1819.
• Vischer, Robert K., The Good, the Bad and the Ugly: Rethinking the Value of Expressive Associations, Notre Dame Law Review 79 (2004): 949.

Cases and Statutes Cited

• Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537 (1987)
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
• Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)
• NAACP v. Alabama, 357 U.S. 449 (1958)
• New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988)
• Roberts v. United States Jaycees, 468 U.S. 609 (1984)

See also Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995); NAACP v. Alabama Ex. Rel. Patterson, 357 U.S. 449 (1958); Roberts v. United States Jaycees, 468 U.S. 609 (1984); Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987)