Expressive Association vs. Anti-Discrimination Laws

Okay, I finally had time to read the full Boy Scouts decision.

First, here's New Jersey's definition of "public accommodation" as discussed in the
Boy Scouts (Dale) case below.....I have added emphasis:

l. 'A place of public accommodation' shall include, but not be limited to: any tavern,
roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether
for entertainment of transient guests or accommodation of those seeking health,
recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop,
store, establishment, or concession dealing with goods or services of any kind; any
restaurant, eating house, or place where food is sold for consumption on the premises;
any place maintained for the sale of ice cream, ice and fruit preparations or their
derivatives, soda water or confections, or where any beverages of any kind are retailed
for consumption on the premises; any garage, any public conveyance operated on land or
water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or
seashore accommodation; any auditorium, meeting place, or hall; any theatre,
motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement
and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and 
pool
parlor, or other place of amusement; any comfort station; any dispensary, clinic or
hospital; any public library; any kindergarten, primary and secondary school, trade or
business school, high school, academy, college and university, or any educational
institution under the supervision of the State Board of Education, or the Commissioner
of Education of the State of New Jersey. ****Nothing herein contained shall be 
construed
to include or to apply to any institution, BONA FIDE CLUB, OR PLACE OF ACCOMMODATION,
which is in its nature distinctly private; *****nor shall anything herein contained
apply to any educational facility operated or maintained by a bona fide religious or
sectarian institution, and the right of a natural parent or one in loco parentis to
direct the education and upbringing of a child under his control is hereby affirmed; 
nor
shall anything herein contained be construed to bar any private secondary or post
secondary school from using in good faith criteria other than race, creed, color,
national origin, ancestry or affectional or sexual orientation in the admission of
students."

Below are EXCERPTS from the Supreme Ct's opinion in the Dale case, which can be found 
in
its entirety at:
http://supct.law.cornell.edu/supct/html/99-699.ZO.html


In Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), we observed that
"implicit in the right to engage in activities protected by the First Amendment" is "a
corresponding right to associate with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends." This right is crucial in
preventing the majority from imposing its views on groups that would rather express
other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to
expressive association is "especially important in preserving political and cultural
diversity and in shielding dissident expression from suppression by the majority").
Government actions that may unconstitutionally burden this freedom may take many forms,
one of which is "intrusion into the internal structure or affairs of an association"
like a "regulation that forces the group to accept members it does not desire." Id., at
623. Forcing a group to accept certain members may impair the ability of the group to
express those views, and only those views, that it intends to express. Thus, "[f 
]reedom
of association . plainly presupposes a freedom not to associate." Ibid.
    The 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. New York State Club 
Assn.,
Inc. v. City of New York, 487 U.S. 1, 13 (1988). But the freedom of expressive
association, like many freedoms, is not absolute. We have held that the freedom could 
be
overridden "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." Roberts, supra, at 623.

To determine whether a group is protected by the First Amendment's expressive
associational right, we must determine whether the group engages in "expressive
association." The First Amendment's protection of expressive association is not 
reserved
for advocacy groups. But to come within its ambit, a group must engage in some form of
expression, whether it be public or private.

"it is not the role of the courts to reject a group's expressed values because they
disagree with those values or find them internally inconsistent."

As we give deference to an association's assertions regarding the nature of its
expression, we must also give deference to an association's view of what would impair
its expression. See, e.g., La Follette, supra, at 123-124 (considering whether a
Wisconsin law burdened the National Party's associational rights and stating that "a
State, or a court, may not constitutionally substitute its own judgment for that of the
Party"). That is not to say that an expressive association can erect a shield against
antidiscrimination laws simply by asserting that mere acceptance of a member from a
particular group would impair its message.

...associations do not have to associate for the "purpose" of disseminating a certain
message in order to be entitled to the protections of the First Amendment. An
association must merely engage in expressive activity that could be impaired in order 
to
be entitled to protection.

 the First Amendment simply does not require that every member of a group agree on 
every
issue in order for the group's policy to be "expressive association."

State public accommodations laws were originally enacted to prevent discrimination in
traditional places of public accommodation-like inns and trains. See, e.g., Hurley,
supra, at 571-572 (explaining the history of Massachusetts' public accommodations law);
Romer v. Evans, 517 U.S. 620, 627-629 (1996) (describing the evolution of public
accommodations laws). Over time, the public accommodations laws have expanded to cover
more places.2 New Jersey's statutory definition of " '[a] place of public accommodation
 " is extremely broad. The term is said to "include, but not be limited to," a list of
over 50 types of places. N. J. Stat. Ann. §10:5-5(l) (West Supp. 2000); see Appendix,
infra, at 18-19. Many on the list are what one would expect to be places where the
public is invited. For example, the statute includes as places of public accommodation
taverns, restaurants, retail shops, and public libraries. But the statute also includes
places that often may not carry with them open invitations to the public, like summer
camps and roof gardens. In this case, the New Jersey Supreme Court went a step further
and applied its public accommodations law to a private entity without even attempting 
to
tie the term "place" to a physical location.3 As the definition of "public
 accommodation" has expanded from clearly commercial entities, such as restaurants,
bars, and hotels, to membership organizations such as the Boy Scouts, the potential for
conflict between state public accommodations laws and the First Amendment rights of
organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a compelling 
interest
in eliminating discrimination against women in public accommodations. But in each of
these cases we went on to conclude that the enforcement of these statutes would not
materially interfere with the ideas that the organization sought to express. In 
Roberts,
we said "[i]ndeed, the Jaycees has failed to demonstrate . any serious burden on the
male members' freedom of expressive association." 468 U.S., at 626. In Duarte, we said:

"[I]mpediments to the exercise of one's right to choose one's associates can violate 
the
right of association protected by the First Amendment. In this case, however, the
evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any
significant way the existing members' ability to carry out their various purposes." 481
U.S., at 548 (internal quotation marks and citations omitted).

We thereupon concluded in each of these cases that the organizations' First Amendment
rights were not violated by the application of the States' public accommodations laws.

    In Hurley, we said that public accommodations laws "are well within the State's
usual power to enact when a legislature has reason to believe that a given group is the
target of discrimination, and they do not, as a general matter, violate the First or
Fourteenth Amendments." 515 U.S., at 572. But we went on to note that in that case "the
Massachusetts [public accommodations] law has been applied in a peculiar way" because
"any contingent of protected individuals with a message would have the right to
participate in petitioners' speech, so that the communication produced by the private
organizers would be shaped by all those protected by the law who wish to join in with
some expressive demonstration of their own." Id., at 572-573. And in the associational
freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a
compelling state interest, the Court went on to examine whether or not the application
of the state law would impose any "serious burden" on the organization's rights of
expressive association. So in these cases, the associational interest in freedom of
expression has been set on one side of the scale, and the State's interest on the 
other.

New Jersey's public accommodations law directly and immediately affects associational
rights, in this case associational rights that enjoy First Amendment protection.

In Hurley, we applied traditional First Amendment analysis to hold that the application
of the Massachusetts public accommodations law to a parade violated the First Amendment
rights of the parade organizers. Although we did not explicitly deem the parade in
Hurley an expressive association, the analysis we applied there is similar to the
analysis we apply here. We have already concluded that a state requirement that the Boy
Scouts retain Dale as an assistant scoutmaster would significantly burden the
organization's right to oppose or disfavor homosexual conduct. The state interests
embodied in New Jersey's public accommodations law do not justify such a severe
intrusion on the Boy Scouts' rights to freedom of expressive association. That being 
the
case, we hold that the First Amendment prohibits the State from imposing such a
requirement through the application of its public accommodations law.4

Justice Stevens' dissent makes much of its observation that the public perception of
homosexuality in this country has changed. See post, at 37-39. Indeed, it appears that
homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an
argument for denying First Amendment protection to those who refuse to accept these
views. The First Amendment protects expression, be it of the popular variety or not.
See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (holding that Johnson's conviction for
burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U.S.
444 (1969) (holding that a Ku Klux Klan leaders' conviction for advocating unlawfulness
as a means of political reform violates the First Amendment). And the fact that an idea
may be embraced and advocated by increasing numbers of people is all the more reason to
protect the First Amendment rights of those who wish to voice a different view.

We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings
with respect to homosexual conduct are right or wrong; public or judicial disapproval 
of
a tenet of an organization's expression does not justify the State's effort to compel
the organization to accept members where such acceptance would derogate from the
organization's expressive message. "While the law is free to promote all sorts of
conduct in place of harmful behavior, it is not free to interfere with speech for no
better reason than promoting an approved message or discouraging a disfavored one,
however enlightened either purpose may strike the government." Hurley, 515 U.S., at 
579.

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Below are excerpts from the 3rd Circuit's decision about nudist magazines:

--------------------

United States of America v. Various Schedules of Merchandise, Schedule 287, 
Alessandra's
Smile, Inc.,

The 3rd Circuit panel also determined that the magazines qualified "for First Amendment
protection because of their political value."

The magazines are political, the panel said, because they represent the nudists'
alternative lifestyle and their desire to bring about "political and social change."

"These magazines qualify for First Amendment protection because of their political
value. It is true that the political value of these magazines [i.e., the European
imports] is not as immediately evident as the political value of Naturally, which
contains articles about the legal status of public nudity around the world and actively
advocates for unregulated nudism. This is so particularly since the text of the seized
magazines is not before us. ä However, publications dedicated to presenting a visual
depiction of an alternative lifestyle, a depiction with a decidedly utopian flavor, 
have
political value similar to the political value of articles criticizing government
regulation of that and other lifestyles."

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When you combine the NJ public accommodations law, the Dale opinion, and the
Alessandra's Smile decision,

it is clear to me that a private membership club based on FAMILY social nudism, could
EASILY exclude

single, childless males (or females, for that matter), AND could still have 
"facilities"
or "accommodations" (rooms, etc.), as long as the club

in its bylaws, membership standards, etc., clearly and sincerely emphasized its it 
focus
on FAMILY social nudism.

Are the Boy Scouts required to accept gays (or atheists) at their camps simply because
those camps have facilities???

I don't THINK SO!!!!!!!!!!!!!!!