A Call for a Modified Standard: the Supreme Court Struggles to Define When Private Organizations Can Discriminate in Contravention of State Antidiscrimination Laws in Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)

• Publication year: 2021

79 Nebraska L. Rev. 794. A Call for a Modified Standard: The Supreme Court Struggles to Define When Private Organizations Can Discriminate in Contravention of State Antidiscrimination Laws in Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)

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Note*

Sean B. Druyon

A Call for a Modified Standard: The Supreme Court Struggles to Define When Private Organizations Can Discriminate in Contravention of State Antidiscrimination Laws in Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)

TABLE OF CONTENTS

I. Introduction................................... 794
II. Background of Expressive Association........... 796
III. Boy Scouts of America v. Dale: Background
Facts and Procedural Posture................... 802
IV. Analysis....................................... 805
A. The Majority's Standard is
Over-protective............................. 805
B. The Dissent's Heightened
Standard is Underprotective................. 808
C. A Proposed Standard......................... 819
V. Conclusion..................................... 823

I. INTRODUCTION

Since the Civil Rights Act of 1964,(fn1) the federal government has played a significant role in reducing invidious discrimination against individuals on the basis of race, religion, color and national origin. Title II(fn2) of that Act prohibits discrimination or segregation in places of public accommodation if the operations of such establishments affect

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commerce(fn3) or if the discrimination or segregation therein is supported by state action.(fn4) State antidiscrimination and public accommodation statutes generally provide greater protection than Title II.(fn5) Although state public accommodation laws initially mirrored the Civil Rights Act of 1964, they have progressively increased in scope.(fn6) State public accommodation laws now prohibit discrimination on the basis of appearance, sexual orientation, physical handicap, past criminal conduct, marital status and much more.(fn7)

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In the wake of these broadening state laws against discrimination lie many private organizations treading to stay afloat in what has become a tumultuous sea of clashing constitutional rights. These private organizations justify their discriminatory membership policies on the grounds they engage in expressive association protected by the First Amendment,(fn8) while individuals denied membership to these organizations claim equal protection of the law under the Fourteenth Amendment and under state public accommodation laws. Courts at all levels have struggled to establish when a group is constitutionally permitted to discriminate in contravention of state public accommodation laws.(fn9) Part of this struggle is due to the fact that this conflict is a relatively new one. Indeed, the Supreme Court has addressed this issue on only a few occasions. In each of these cases it applied an ad hoc balancing test, weighing the state's interest in eradicating discrimination on oneside, with the private organization's interest in communicating its message on the other. None of these decisions, however, clearly define the criteria for when a private organization can, if ever, prevail over a state's law against discrimination. Essentially, the ad hoc balancing adopted by the Supreme Court has a subjective element that invites inconsistent results.

Boy Scouts of America v. Dale(fn10) presents the issue of whether a private organization is entitled to the right of freedom of expressive association under the First Amendment, thereby exempting it from a state's public accommodation law, when it had a general mission statement to `instill values in young people'(fn11) and had limited evidence that its exclusionary policy against homosexuality was on the basis that homosexuality was immoral, yet denied a leadership position to a homosexual on the grounds a homosexual's mere presence as a leader would send a message contrary to the Boy Scouts' asserted policy that homosexuality is immoral. Dale clearly illustrates that the proper standard for determining whether a private organization can discriminate in contravention of a state's public accommodation law is yet unresolved.

This Note, in Part II, provides a background of Supreme Court cases dealing specifically with the conflict between freedom of expressive association and state public accommodation laws. Part III reviews the procedural posture of Boy Scouts of America v. Dale, identifying the central issues and decisions of the courts below. Part IV analyzes the Supreme Court majority's standard and contrasts it with the dissent's heightened standard, concluding that both sides deviate from precedent in reaching their respective conclusions. While the majority's standard provides too much protection to groups at the expense of equality, the dissent's standard provides far too little protection to groups who engage in purely expressive association. Finally, this Note proposes a standard that reconciles these competing standards.

II. BACKGROUND OF EXPRESSIVE ASSOCIATION

Roberts v. United States Jaycees

The first Supreme Court case addressing whether a private organization had a right to expressive association as a defense to a state's public accommodation law was Roberts v. United States Jaycees.(fn12) The United States Jaycees was a non-profit national membership corporation whose objective was, according to its bylaws, `to pursue such educational and charitable purposes as would promote and foster the

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growth and development of young men's civic organizations.'(fn13) The Jaycees advocated a number of political and public causes,(fn14) and provided management and leadership training to its members.(fn15) According to the Jaycees' membership policy, only young men between the ages of eighteen and thirty-five years could obtain full membership status, while any other person could achieve an associate member sta-tus.(fn16) Full membership status entitled a member to participate in voting, hold office, and participate in leadership training programs.(fn17) Associate members could attend all other meetings, voice concerns, and express their own opinions.(fn18)

One of the central issues before the Court was whether Minnesota could apply its public accommodation law to the Jaycees and compel it to admit women to full member status.(fn19) The Minnesota public accommodation law prohibited any organization from denying women, among other groups, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation.(fn20)

In response to the Jaycees' claim that it was entitled to discriminate against women in its membership selection, the Court delineated two distinct association rights under the First Amendment: intimate(fn21) and expressive. With respect to the Jaycees' claim to expressive association, the Court preliminarily analyzed the rationale behind preserving this right. It noted that an individual's right to speak, worship, and petition the government for the redress of grievances could not be protected from state interference unless a correlative freedom to engage in group effort towards those ends was not also guaranteed.(fn22) The Court added, `we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.'(fn23) The Court also noted:

There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept

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members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association, therefore, plainly presupposes a freedom not to associate.(fn24)

The Court then established the standard for determining when a group was entitled to expressive association as a defense to a state's public accommodation law. First, the group had to be engaged in activity protected by the First Amendment.(fn25) It then had to show how the forced inclusion of the unwanted member would significantly impede its ability to disseminate its message. But the Court was quick to note that this right to expressive association was not absolute. Rather, `[i]nfringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.'(fn26) Thus, the Court applied a balancing test, weighing the state's interest on one side and the group's interest in communicating its message on the other.

Applying this standard, the Court held that since the Jaycees advocated a number of political and public causes, as well as provided management and leadership training to its members, it was engaged in expressive activity.(fn27) The Court then held that Minnesota had a compelling interest in eradicating discrimination against women, since women had a history of being economically disadvantaged.(fn28) The Court ultimately found that the Jaycees failed to show how the integration of women, as full members, would significantly impede its ability to pursue `educational and charitable purposes as will promote and foster the growth and development of young men's civic organizations in the United States.'(fn29) It held that since the Jaycees already had women participants, changing the status of a woman from associate to full voting-member status would, at most, incidentally affect its expression.(fn30) Rejecting the Eighth Circuit Court of Appeals rationale that women could affect the expression of the Jaycees as speculative, the Court held that there was no evidence to...