2012-08-28 13:17:42

Roberts v. United States Jaycees established a framework for a First Amendment defense against Antidiscrimination Laws, based on what an organization expresses via its membership policies. In Roberts, the national organization of the Jaycees had a policy of male-only membership. Two local chapters in Minnesota admitted women. The national organization threatened to revoke their charters. The local chapters charged sex discrimination, under a Minnesota statute.

The U.S. Supreme Court delineated two distinct interests protected by First Amendment freedom of association. The first is a right of ‘‘intimate association.’’ This is an element of personal liberty, protecting certain intimate relationships from undue intrusion by the state. Marital and familial relationships are leading examples. The Jaycees is not small, selective, or exclusive, however, so its claim did not fit this category.

‘‘Expressive association’’ also derives from the First Amendment. This right protects a group’s efforts toward shared goals, be they political, social, economic, educational, religious, or cultural. The Jaycees’ interest in its membership requirements was of this type. Minnesota’s antidiscrimination law intruded by forcing the association to accept members—women—whom the Jaycees did not want. The right to expressive association is not absolute, however, and can be infringed on to further Compelling State Interests. These must be unrelated to suppression of viewpoint, and the state’s law must be the least restrictive means of achieving the state’s goals. Minnesota’s interest in eradicating sex discrimination was a compelling interest. The Jaycees’ expressive association was not seriously burdened by the antidiscrimination law, because the exclusion of women did not involve any symbolic message and the club’s policies were unlikely to be altered by the participation of women members.

The right of intimate association has not had much success in court. Expressive association is another matter. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group (1995), it was an alternative rational for protecting the exclusion of an Irish gay group from a privately organized St. Patrick’s Day parade. In Boy Scouts of America v. Dale (2000), the Boy Scouts’ policy of excluding of gay men as adult leaders was protected as expressive association; forcing the inclusion of gay men pursuant to an antidiscrimination statute would have violated this right.

After Dale, commentators returned to Justice O’Connor’s concurring opinion in Roberts. She drew a distinction between organizations whose purpose is expressive and organizations whose purpose is commercial. The more commercial an association, the less right it has to assert First Amendment protection against Antidiscrimination Laws. If applied expansively, the doctrine of expressive association threatens to undermine Antidiscrimination Laws Forum for Academic and Institutional Rights v. Rumsfeld (2005) may further clarify its scope.


References and Further Reading

  • Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987).
  • Koppelman, Andrew, Should Noncommercial Associations Have an Absolute Right to Discriminate? Law and Contemporary Problems 67 (2004): 67.

Cases and Statutes Cited

  • Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
  • Forum for Academic and Institutional Rights v. Rumsfeld, 319 F.3d 219 (3d Cir. 2004), cert. granted, 125 S.Ct. 1977 (2005)
  • Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995)

See also Freedom of Association; Marches and Demonstrations; NAACP v. Alabama Ex Rel. Patterson, 357 U.S. 449 (1958)