Should evangelical Christian groups at colleges and universities be permitted to discriminate against gay and lesbian students? Do the Boy Scouts have a constitutional right to exclude openly gay males? The first question is at the center of efforts by liberal colleges and universities to punish evangelical student groups for their illiberal views. The second question will soon be decided by the Supreme Court in Boy Scouts of America v. Dale. Both controversies dramatize the challenge exclusionary private groups pose to laws and social norms that celebrate inclusion. How do we balance the free speech and associational rights of bigots with the drive for full equality?
I begin with the basic premise that individuals and their private associations have a fundamental moral and legal right to champion any prejudice or ideal that I don't share. ("Big of you," I imagine them saying.) Effective advocacy of ideas, or control of the message, requires some control of the messengers. So the same respect for individual autonomy and freedom of conscience, which mandates support for gay rights, also requires defending the rights of homophobes to band together exclusively and express their belief that homosexuality is sinful and deviant.
Public entities, however, have no First Amendment rights; instead, they have an obligation not to discriminate. It follows that the right of any group to discriminate depends largely on whether or not the group is truly private. An organization that receives significant public support (other than a tax exemption generally extended to private groups) is a quasi-public entity that ought to abide by public norms prohibiting discrimination.
The New Jersey Supreme Court found that the Boy Scouts of America (BSA) was subject to state law against discrimination in public accommodations partly because it greatly benefited from public support and services: Public schools assist in recruiting efforts and host various Scout meetings and activities; fire departments and law enforcement agencies sponsor Scout troops; military facilities are available to them; and New Jersey's Department of Environmental Protection is authorized to make sure that any body of water controlled by the Scouts is stocked with fish.
The view of the Boy Scouts as an essentially public group is also bolstered by its nonselective admission policy. As the New Jersey court stressed, the Boy Scouts of America is hardly an exclusive club. It publicly solicits members and is essentially open to all interested boys. (Of course, it does not accept girls, but New Jersey antidiscrimination law exempts single-sex organizations.)
If the BSA is viewed as a de facto public organization (as I believe it should be viewed), we don't have to reach hard questions about the limits of private associational rights in considering the organization's right to expel homosexuals. But when the New Jersey Supreme Court heard arguments in Boy Scouts of America v. Dale , it did not focus on the public or private status of the Scouts; instead, it wrestled with the conflict between public antidiscrimination laws and rights of private association.
The Supreme Court has addressed this conflict, clumsily, in previous cases. In 1984 in Roberts v. United States Jaycees, it ruled that the Jaycees could be forced to admit women under Minnesota's public accommodation law. (The Court issued a similar ruling in 1987 requiring the Rotary Club to admit women under California law.) These cases offer a rather crabbed view of associational rights. The Court observed that freedom to associate qualifies as an "intrinsic element of personal liberty" primarily in the context of intimate associations, like familial relationships or selective, relatively small voluntary communities. Large, relatively unselective voluntary associations are constitutionally protected only to the extent that they are vehicles for protected First Amendment activities--like speech, assembly, or the exercise of religion.
This analysis requires the Court to examine the organization's expressive purpose, or mission, in order to evaluate the government's impact upon it. The mission of the Jaycees, as stated in its bylaws, was "to foster the growth and development of young men's civic organizations." How this historic mission would be affected by requiring the admission of women was not self-evident. Still, Justice Brennan's majority opinion held that the Jaycees' purpose (which Brennan didn't exactly define) would not be impaired if the organization were subjected to antidiscrimination law.
Maybe Brennan was right in this case (and maybe not), but his analysis ignored the inevitable effect of membership policies on organizational purpose. Isn't the voice of a group the collective voice of its members? It's worth noting that if Justice Brennan believed that there was a natural gender gap between men and women on political and social issues, he would have had to conclude that the Jaycees' mission--which, he acknowledged, included staking out positions on controversial public issues--was bound to be affected significantly by admitting women.
Sometimes the destructive impact of antidiscrimination laws on an association's purpose is clear: In a 1995 case, the Supreme Court unanimously (and correctly) held that organizers of Boston's Saint Patrick's Day parade had a First Amendment right to exclude openly gay marchers because they promoted a message about gay rights that the organizers disdained. In a parade, the marchers are the message, obviously. But the relationship between message and membership is often more subtle, which makes a judicial inquiry into it more troubling, entangling a court in the internal affairs of associations and imposing its values on them.
In Boy Scouts of America v. Dale, the Supreme Court seems poised to decide whether the acceptance of openly gay members would compromise the group's "expressive purpose," which includes, according to the BSA, promotion of a traditional moral code. Scouts are required to remain "morally straight" and "clean" according to the Scout oath and Scout law; the BSA has essentially argued that gay people are morally deviant and dirty, which disqualifies them as Scouts.
This is hardly an appealing or intelligent position (and it is belied by the successful 12-year scouting career of plaintiff James Dale, an eagle scout who earned 30 merit badges before he was expelled from the Scouts for publicly acknowledging his homosexuality). But people have a right to their stupidities. It should not be the business of courts to decide the merits of a private association's vision of its own expressive purpose, just as it should not be the business of government to sponsor discrimination. Let the Boy Scouts choose between the right to indulge in its prejudices and the extensive public support it has traditionally enjoyed.
The question of governmental or quasi-governmental support for an exclusionary group at odds with public norms is at issue in the treatment of conservative Christian groups on liberal campuses. At Grinnell College, Middlebury College, and Williams College, evangelical student groups have been penalized for their views on homosexuality. In a typical recent case, the Christian Fellowship at Tufts University was "derecognized" by the student government after it barred an openly gay member from a leadership post; derecognition meant losing a $6,000 annual stipend, the use of classroom facilities, access to listing services, and the use of "Tufts" in its name.
The Tufts case generated controversy off campus, and the Christian Fellowship's official status has been reinstated by the university. Applying majoritarian notions of equality to student evangelical groups is particularly hard to justify because it compromises religious freedom as well as associational rights. Many religious groups have exclusionary policies, which they regard as divinely ordained, and public antidiscrimination laws generally include exemptions for religious organizations, in respect for their special status under the First Amendment. Private schools are not subject to the First Amendment, but they do generally claim to support religious freedom as well as equality.
It's tempting to attribute these assaults on campus evangelical groups to political correctness, partly because it's hard to imagine liberal colleges punishing liberal religious groups that refuse leadership roles to members who preach that homosexuals are sinners in need of reparative therapy. In any case, the punitive action against the evangelical students connotes a disdain for religious and ideological diversity. At relatively liberal campuses, conservative Christians tend to be more marginalized than gay rights activists.
Like most First Amendment rights, the right of association has particular value to beleaguered minorities. Private associations sometimes provide dissenters with refuge from the majority rule of their larger community, not to mention a valuable organizing base. Modern liberation movements have flourished precisely because women, gays, and racial minorities have enjoyed the freedom to associate with each other and disassociate, when need be, from their political enemies; they have been free to form associations that voice their collective demands for equality. At times they have had to wrest their freedoms from actively hostile communities and governments, which means that they should know better than to deny the same freedoms to their opponents. It's sad to see the dream of equality become an excuse for repressing dissent.