Freedom of expressive association and discrimination on the basis of sexual orientation

• Author: Elaina Rahrig/Sarah McLaughlin/Arie Wright
• Pages: 553-572

FREEDOM OF EXPRESSIVE ASSOCIATION AND

DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

EDITED BY ELAINA RAHRIG, SARAH MCLAUGHLIN, AND ARIE WRIGHT

I. INTRODUCTION.......................................... 553

II. FIRST AMENDMENT CHALLENGES TO STATE PUBLIC ACCOMMODATIONS

LAWS ................................................ 554

A. ROBERTS V. UNITED STATES JAYCEES ....................... 554

B. HURLEY V. IRISH-AMERICAN GAY, LESBIAN, & BISEXUAL GROUP OF

BOSTON........................................... 556

C. BOY SCOUTS OF AMERICA V. DALE ........................ 557

III. FIRST AMENDMENT CHALLENGES BY PRIVATE BUSINESSES ........... 558

IV. FIRST AMENDMENT CHALLENGES WHEN EXCLUSIONARY RELIGIOUS

STUDENT GROUPS ARE EXCLUDED BY NONDISCRIMINATION POLICIES . . . . 563

A. LEGAL FRAMEWORK FOR ANALYZING SPEECH AND EXPRESSIVE

ASSOCIATION CLAIMS IN PUBLIC SCHOOLS .................. 564

1. Speech Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564

2. Expressive Association Claims. . . . . . . . . . . . . . . . . . . . . 566

B. CHRISTIAN LEGAL SOCIETY V. MARTINEZ: THE SUPREME COURT’S

APPROACH ........................................ 566

1. The Supreme Court’s Public Forum Analysis in Martinez . . 568

2. The Supreme Court’s Scrutiny of the Policy’s Scope and

Rationale in Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569

3. The Martinez Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570

C. BEYOND MARTINEZ: APPLICATION ........................ 571

V. CONCLUSION ........................................... 572

I. INTRODUCTION

According to the United States (U.S.) Supreme Court, “[t]he Constitution guar-

antees freedom of association .. . [to be] .. . an indispensable means of preserving

other individual liberties.”

1

The right of expressive association secures both the

“right to associate for the purpose of engaging in those activities protected by the

First Amendment—speech, assembly, petition for the redress of grievances, and

the exercise of religion”

2

—and a “commensurate right to choose with whom one

will not associate.”

3

Thus, the Supreme Court safeguards an organization’s

1. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).

2. See id.

3. Ann H. Jameson, Roberts v. United States Jaycees: Discriminatory Membership Policy of a

National Organization Held Not Protected by First Amendment Freedom of Association, 34 CATH. U. L.

REV. 1055, 1055 (1985).

553

exclusion of certain individuals from membership (for example, members of the

lesbian, gay, bisexual, and transgender (LGBT) community) as a means of ex-

pressive association. This causes tension with public accommodations laws

designed to ensure equal access to non-public forums, and organizational policies

that exclude members based on their sexual orientation. To decide if a public

accommodations law violates the constitutional freedom of expressive associa-

tion, the Court evaluates whether the presence of a person protected by the public

accommodations law “affects, in a significant way, the group’s ability to advocate

public or private viewpoints.”

4

This Article examines how the Court applies this standard. Part II articulates

the doctrine of expressive association by tracing its development through three

major cases involving public accommodations laws. Part III explores the applica-

tion of modern expressive association law to for-profit businesses that discrimi-

nate against certain customers based on their sexual orientation. Finally, Part IV

discusses the development of expressive association jurisprudence in cases where

public schools with non-discrimination policies declined to officially recognize

religious student groups that excluded members based on their religious beliefs

or sexual orientation.

II. FIRST AMENDMENT CHALLENGES TO STATE PUBLIC ACCOMMODATIONS LAWS

The Supreme Court preserves a group’s right to exclude unwanted members,

even in contravention to a state public accommodation law, if: (1) the group is

engaged in private expressive association

5

and (2) the inclusion of the putative

members would force the group to alter its message.

6

Three core cases established

tests for determining whether public accommodations laws impermissibly

infringe on a group’s freedom of association: Roberts v. United States Jaycees;

7

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston;

8

and Boy

Scouts of America v. Dale.

9

A. ROBERTS V. UNITED STATES JAYCEES

Roberts v. United States Jaycees

10

implicated states’ interest in combating gen-

der discrimination and laid the foundation for the modern freedom of association

test. In Roberts, the U.S. Jaycees

11

challenged the constitutionality of the

Minnesota Human Rights Act (MHRA), which forbade discrimination on the

4. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (internal citations omitted).

5. Id.

6. See, e.g., Roberts, 468 U.S. at 622–23.

7. Roberts, 468 U.S. 609.

8. Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995).

9. Dale, 530 U.S. 640 (2000).

10. Roberts, 468 U.S. 609.

11. Id. at 612 (“United States Jaycees . . . is a nonprofit membership corporation . . . . The objective . . .

as set out in its bylaws, is to pursue such educational and charitable purposes as will promote and foster the

growth and development of young men’s civic organizations.”) (quotation omitted).

554 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:553