Freedom of association cases are interesting in that they bring into conflict two competing views of the world: rights-oriented liberalism that holds that a person's identity comes from individual choices (and that government ought to create a framework of laws that remove barriers to choice) and communitarianism, that holds that a person's identity comes from the communities of which an individual is a part (and that communities are an important buffer between the government and the individual).
The leading case on the right of an association to establish and apply its own membership rules is the 1984 case of Roberts v. United States Jaycees. In Roberts, the Court recognized that the power to determine its own membership is central to the free speech rights of expressive organizations. (Imagine how the speech of the Jewish Anti-Defamation League might be affected if it could be forced to admit as members anti-Semites.) Nonetheless, the Court in Roberts upheld a Minnesota public accomodations law requiring the Jaycees to admit women as members, in contravention of that organization's rules. Justice Brennan, for the Court, found that Minnesota had a compelling interest in providing the women of Minnesota the economic benefits that came with membership in the Jaycees. Justice O'Connor, in a concurring opinion, found that the Jaycees were a commercial organization and therefore subject to state regualtion of its membership. On the other hand, according to O'Connor, a predominately expressive association has an absolute right to determine its own membership. In subsequent cases in 1987 (Rotary International v Rotary Club of Duarte, 481 US 537) and 1988 (N. Y. State Club Ass'n v New York, 487 US 1), the Court extended Roberts.
2000, the Supreme
Court decided a closely-watched case involving New Jersey's decision
the Boy Scouts of America are a public accomodation that can be
to admit homosexuals. A 5-4 majority of the Court found
New Jersey's decision prohibiting the Boy Scouts from terminating the
of a gay scoutmaster. The Court held that the First Amendment
the Boy Scouts, as an expressive organization promoting the view that
is an unacceptable lifestyle, from excluding scouts on that
The four dissenters questioned whether views with respect to
were at all central to the Scouts' expressive purposes.
rights are viewed differently by the Court when an organization is not
being denied outright the right to determine its own membership, but is
only being denied public benefits because of its exclusionary
policy. In Christian Legal
Society v Martinez (2010), the Court, on a 5 to 4 vote, upheld
the decision of a public law school to deny funding and use of certain
law school facilities to an organization that refused to accept as
members students who "engaged in unrepentant homosexual conduct."
Roberts vs. United States Jaycees (1984)
Boy Scouts of America vs. Dale (2000)
Christian Legal Society v Martinez (2010)
2. Would Justice O'Connor be more likely to categorize the Boy Scouts as a predominately commercial organization or as a predominately expressive organization?
3. Was it really of "compelling" importance to the economic well-being of women in Minnesota that the Jaycees be opened to membership by women?
4. Does Roberts encourage organizations restricting membership to take strong positions opposing in some way the interests of persons in the category restricted from membership?
5. What are the two types of association protected by the Constitution? What are examples of entities, relationships, or organizations that might be recognized as protected under the right of intimate association?
6. What should Roberts mean for golf clubs, fraternities, and other social organizations that exclude members based on race, religion, sex, or sexual preference?
7. Would Dale have come out differently if Dale had been a fourteen-year-old scout, rather than a college-aged scoutmaster?
8. How central to the Scouts' expressive purposes do whatever views it may have on homosexuality appear to be?
9. Would the Scouts case have come out differently if the official view of the Scouts being challenged was an objection to inter-racial dating, and the exclusion of a scout for inter-racial dating were the issue before the Court? Why or why not?