Nondiscrimination and Equal-Access Requirements

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

Nondiscrimination laws implicate the freedom of association to the extent that they require organizations to admit or otherwise associate with individuals that they would otherwise exclude. While the Supreme Court has recognized a right not to associate, it has also held that the Constitution “places no value on discrimination.” 1 Many of the cases involving freedom of association thus concern the interplay between government-imposed nondiscrimination or equal-access requirements and a group’s freedom to associate with individuals of its choosing.2 The Supreme Court decisions in this area also are informed, in part, by the Court’s solicitude for an organization’s own freedom of speech.3

In general, the government may impose nondiscrimination requirements on private, social organizations through public accommodations laws and other statutory requirements if those laws “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” 4 In Roberts v. United States Jaycees, the Court held that Minnesota, through its public accommodations law, could require the United States Jaycees to include women in its membership.5 The Court reasoned that the government had a compelling interest in ensuring that women had equal access to publicly available goods and services, including the programs offered by the Jaycees.6 Additionally, applying the law to the Jaycees advanced that interest through “the least restrictive means.” 7 The exclusion of women, the Court ruled, was not necessary to preserve the integrity of the organization’s own expressive activities, which included civic, charitable, lobbying, fundraising, and other activities that did not depend on an all-male membership.8 The Court reached a similar decision, based on similar reasoning, three years later in Board of Directors of Rotary International v. Rotary Club of Duarte.9

Consistent with Roberts and Duarte, in New York State Club Association v. City of New York, the Court upheld New York City’s Human Rights Law, which prohibited race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and extended to certain private clubs.10 The Court reasoned that the City’s antidiscrimination law was neither invalid in all its applications nor “substantially overbroad” because the city could constitutionally apply the law to large clubs with commercial operations.11

Essential to the holding of Roberts and Rotary International was the Court’s conclusion that including women in those organizations would not impinge on the organization’s ability to present its message. In contrast, where nondiscrimination requirements would affect an organization’s messaging, the Court has been more protective of the right of association under the First Amendment. In Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, the private organizers of Boston’s St. Patrick’s Day parade denied a group’s request to march in the parade.12 The group claimed that its exclusion was based on its members’ sexual orientation and thus violated the state’s public accommodations law.13 The parade organizers responded that application of that statute would violate their freedom of expressive association.14 The Supreme Court agreed with the parade organizers. It first held that parades are a form of expression even if they lack a “particularized message” because marchers in a parade are usually “making some sort of collective point.” 15 The Court next reasoned that the group sought to engage in expressive speech by marching as a unit celebrating its members’ gay, lesbian, and bisexual identities and Irish heritage.16 Because “every participating unit affects the message conveyed by the private organizers,” the Court reasoned, application of the statute would effectively conflict with the First Amendment by requiring the private organizers to “alter the expressive content of their parade.” 17 The Court distinguished Roberts and New York State Club Association as not involving “a trespass on the organization’s message itself.” 18 Even if the parade could be analogized to a large, private club, such that Massachusetts could “generally justify a mandated access provision,” the Court reasoned, the First Amendment would still allow such a group to “exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.” 19

In Boy Scouts of America v. Dale, the Court similarly held that the First Amendment allowed the Boy Scouts of America to refuse a leadership role to an “avowed homosexual,” despite New Jersey’s public accommodations law.20 Citing Hurley, the Court held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” 21 The Boy Scouts, the Court found, engaged in expressive activity in seeking to transmit a system of values, which, for that organization, included opposing homosexual conduct.22 The Court also gave “deference to [the] association’s view of what would impair its expression.” 23 Allowing a gay rights activist to serve in the Scouts would “force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” 24

The Court distinguished Dale in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.25 In holding that a law requiring colleges to allow military recruiters on campus did not violate the schools’ freedom of expressive association, the Court observed that “[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.” 26

The “close scrutiny” given to public accommodations laws that limit associational freedom in cases ranging from Roberts to Dale may not apply in all contexts.27 Christian Legal Society Chapter of the University of California v. Martinez concerned a public law school’s “accept-all-comers policy” that required student organizations to “open eligibility for membership and leadership to all students” as a condition of registration.28 A student organization argued that this policy violated their associational rights because the organization wanted to accept or exclude students based on their religion or sexual orientation.29 The Court did not ask whether the policy was the least restrictive means of advancing the school’s interests in nondiscrimination. Instead, it analogized the school’s program for registered student organizations to a “limited public forum” where a regulation of First Amendment activity need only be reasonable and viewpoint-neutral.30 The Court held that the policy met both of those requirements.31

1: Norwood v. Harrison, 413 U.S. 455, 469–70 (1973) (explaining that “[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections” ); see also R. Mail Ass’n v. Corsi, 326 U.S. 88, 93–94 (1945) (rejecting a claim that New York Civil Rights Law interfered with an organization’s “right of selection to membership” in violation of the Due Process Clause of the Fourteenth Amendment).
2: See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting a law firm’s argument that applying a federal nondiscrimination statute to its decision not to promote a female associate to partner would violate the firm’s freedom of association); Runyon v. McCrary, 427 U.S. 160, 178 (1976) (holding that Congress can prohibit private schools from excluding children on the basis of race without violating a parent’s or a child’s right to free association).
3: E.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
4: Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).
5: Id. at 628–29.
6: Id. at 623–26.
7: Id. at 626.
8: Id. at 627. The Court also held that the Jaycees did not have a right of “intimate association,” because they lacked “the distinctive characteristics” of that form of association, such as small size, identifiable purpose, and selectivity in membership. Id. at 621.
9: 481 U.S. 537, 547, 549 (1987).
10: 487 U.S. 1, 10 (1988) (quoting N.Y.C. Admin. Code § 8-109(1) (1986)).
11: Id. at 11–15.
12: 515 U.S. 557, 561 (1995).
13: Id.
14: Id. at 562–63.
15: Id. at 568–69.
16: Id. at 570.
17: Id. at 572–73.
18: Id. at 580.
19: Id. at 580–81.
20: 530 U.S. 640, 644 (2000).
21: Id. at 648.
22: Id. at 651.
23: Id. at 653.
24: Id.
25: 547 U.S. 47 (2006).
26: Id. at 69. For additional discussion of Forum for Academic and Institutional Rights, Inc., see Amdt1.7.13.10 Requirements That Can Be Imposed Directly.
27: Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 680 (2010).
28: Id. at 668.
29: Id.
30: Id. at 680–83.
31: Id. at 697.