Michael C. Dorf

The Supreme Court Reviews a Conflict Between Equality and Freedom of Association

By MICHAEL C. DORF
Monday, December 14, 2009

Last week, the Supreme Court granted review in Christian Legal Society v. Martinez. It is the latest in a line of cases posing conflicts between anti-discrimination laws or policies and organizations that say that their mission requires them to disassociate themselves from uncloseted persons who belong to sexual minorities, on the ground that such persons openly advocate or engage in conduct that the organization condemns.

So far, in such cases, the right of (dis)association has usually trumped the anti-discrimination rules. However, as I argue in this column, this case poses questions that are not fully answered by any of the prior decisions.

The Clash Between the Hastings Policy and the Christian Legal Society

The University of California, Hastings College of the Law ("Hastings"), like other American law schools, has a non-discrimination policy that forbids discrimination on the basis of "race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation." Hastings applies this policy to its own admissions decisions and programs, as well as to student groups. As a condition of receiving official recognition--a prerequisite for access to certain law school facilities, and for eligibility for funding--student organizations must themselves adhere to the Hastings non-discrimination policy. As the policy is implemented, that means that student groups must admit as a member any student who wishes to join.

The anti-discrimination policy came into conflict with a policy of the Hastings branch of the Christian Legal Society ("CLS"), a student group that requires all of its members to pledge to uphold, among other things, "biblical principles of sexual morality." As interpreted by CLS, those principles forbid "unrepentant participation in or advocacy of a sexually immoral lifestyle." Although CLS contended in its successful petition for review to the Supreme Court that this policy forbids a variety of practices, including, for example, adultery, the controversy at Hastings, as at other law schools where the CLS has clashed with student-group recognition rules, concerns sexual orientation.

After Hastings withdrew funding for CLS based on its failure to abide by the non-discrimination policy, CLS sued. The law school prevailed in both the district court and the appeals court. Who wins in the Supreme Court will likely depend on how the Justices read two lines of First Amendment cases.

The Right to Expressive Association

The First Amendment protects "the right of the people peaceably to assemble, and to petition the government for a redress of grievances," but the Bill of Rights does not expressly protect a freestanding, general-purpose right of association. Nonetheless, the Supreme Court has long construed the First Amendment's protection for freedom of speech (which applies to both states and state entities like the University of California via the Fourteenth Amendment) as entailing a right of "expressive association." (The Constitution has also been interpreted to protect a right of intimate association--encompassing such matters as marriage and sex between consenting adults--but that right is not at issue in the CLS case.)

The basis for the right of expressive association is both simple and sensible: Individuals seeking to express a viewpoint--and thus to exercise their First Amendment rights--will often have difficulty doing so effectively, unless they can band together with other like-minded individuals to generate and disseminate their message. Would-be censors know as much, as they often target dissenting groups, seeking to penalize individual members for having joined such groups.

Meanwhile, the government has a powerful interest in breaking down discriminatory barriers to full participation in society. Laws such as Title VII of the 1964 Civil Rights Act--which bars employment discrimination based on "race, color, religion, sex, or national origin"--have been powerful engines of equality.

When Can an Organization Claim a Right of Expressive Non-Association?

What happens when anti-discrimination law comes into conflict with the right of expressive association? Where the association is a corporation devoted to making profits for shareholders, anti-discrimination law wins. Thus, a computer manufacturer could not refuse to hire women or religious Christians on the mere ground that the shareholders and employees do not want to associate with women or religious Christians.

In the foregoing hypothetical example, of course, we are rightly dubious of any claim that the corporation is even engaged in any expressive association. Certainly, we cannot impute any expressive purpose to the diffuse shareholders of a publicly-traded corporation; it is a much safer assumption that they are simply seeking to maximize the return on their investment. Moreover, to the extent that a corporation's discriminatory hiring policy excludes highly-qualified prospective employees, it probably harms shareholders.

The leading right-to-expressive-association cases in the Supreme Court have not involved profit-seeking corporations, but rather non-profit clubs and organizations. In two such cases from the 1980s, Roberts v. United States Jaycees and Bd. of Dirs. of Rotary Int'l v. Rotary Club, the Court upheld the application of state laws forbidding sex discrimination to the Jaycees and the Rotary. (Full disclosure: I greatly benefited from a Rotary Foundation Scholarship in 1986-87, although I have never been a Rotary member.) These civic and charitable organizations, the Court said, did not have any particular message to spread that would be threatened by admitting female members.

By contrast, in two more recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively. What is the difference between, on the one hand, the Jaycees and Rotary cases, and, on the other hand, Hurley and Dale?

Notably, the answer is not the difference between sex discrimination and sexual-orientation discrimination. Both Hurley and Dale accept that, in general, states may forbid sexual-orientation discrimination.

The Key Issue: Will the Organization's Message Be Undermined?

Instead, the key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. Moreover, it appears from the logic of the dissent that even the dissenters might have barred New Jersey from applying its anti-discrimination law to a group that was more clearly committed to expressing a different message--the "Straight Scouts," say, or the "Heterosexual Boy Scouts."

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

Is a Grant of Official Recognition as a Club a "Forum" for Speech?

CLS argues that it is more like the Boy Scouts and the parade organizers in the Hurley case, than it is like the Jaycees or the Rotary. There is some question about this claim, however. Up until recently, some chapters of CLS admitted openly gay members, often without incident or controversy. Only after the national CLS formally affirmed its opposition to "a sexually immoral lifestyle" in 2004, did clashes of the sort now before the Court propagate. Thus, it could be argued that the acceptance of openly gay members would not undermine the CLS message in favor of lawyering from the perspective of conservative Christianity. After all, that message had been sent for years by CLS chapters that did have such members.

However, Dale makes clear that, within reason, an organization gets to define its own message, and CLS has by now made clear that accepting openly "unrepentant" gay members would undermine its message. Certainly, the CLS has articulated its own message with respect to sexual morality at least as clearly as the Boy Scouts had articulated theirs when the Court decided Dale.

Nonetheless, there is one very important difference between Dale and the CLS case: In Dale (and Jaycees, Rotary, and Hurley, for that matter), the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum.

The Rosenberger opinion relied on a similar holding in the 1993 case of Lamb's Chapel v. Center Moriches School Dist. There, the Court had invalidated a public school policy that opened up school facilities for after-hours use by most groups, but not by religious groups. Without dissent, the Justices in Lamb's Chapel said that this was impermissible discrimination against a particular viewpoint.

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger and Lamb's Chapel, the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

A Compromise Solution: Equal Access, but No Funding, for CLS

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

One intriguing possibility would be a compromise. Official recognition as a student group at Hastings entitles an organization to a variety of benefits, some of which are more clearly expressive than others. For example, only officially-recognized groups have access to the school-wide email system. An attractive approach might be to say that Hastings must give all student groups--including those that violate the non-discrimination policy--access to such methods of communication, but that it can deny direct funding to any organization that refuses to abide by the non-discrimination policy.

That solution would be attractive because, within the context of a university or law school community, the ability of students and student groups to communicate with one another could be fairly taken as a baseline, while subsidization could be treated as entailing a greater level of endorsement by the university or law school.

Unfortunately, this sort of compromise appears to be foreclosed by the Rosenberger decision. There, UVA argued that there is an important distinction between, on one hand, permitting groups to use public property for their own expressive purposes and, on the other hand, the government's funding of private speech. The Rosenberger Court rejected this distinction. Thus, it appears that, on the Court's view, whatever the resource may be--whether classrooms for holding after-hours meetings as in Lamb's Chapel; money for printing as in Rosenberger; or, by extension, bandwidth for sending email as in CLS--the government cannot use the speaker's viewpoint as a basis for allocating it.

Accordingly, CLS v. Martinez will likely be decided on an all-or-nothing basis. Either the Court will view the Hastings policy as neutral and thus permissible, or it will view it as inherently infringing the right to expressive association, and thus impermissible.

Such all-or-nothing reasoning is understandable from a Court charged with fashioning legal doctrine that the rest of us must be able to apply with some predictability. But it is nonetheless unfortunate, because it obscures the fact that cases of this sort are genuinely difficult. CLS v. Martinez poses a conflict between two principles that we rightly value: expressive association and equality. No resolution can fully honor both.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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