Amicus Curiae Brief — Boy Scouts of America v. Dale

=. Supreme Court, U.S.

FILED

MAR 29 2n00

No. 99-699

IN THE C ‘

Supreme Court of the United States

lo

Boy SCOUTS OF AMERICA AND

MONMOUTH COUNCIL, BOY SCOUTS OF AMERICA,

Petitioners,

v.

JAMES DALE,

Respondent.

On Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF OF THE NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

David T. Goldberg DENNIS C. HAYES

227 Garfield Place Counsel of Record

Brooklyn, NY 11215 N.A.A.C.P.

4805 Mt. Hope Drive

Baltimore, MD 21215

(410) 486-9191

Attorneys for Amicus Curiae

PRESS OF BYRON S. ADAMS ¢ WASHINGTON, D.C. + 1-800-347-8208

"BEST AVAILABLE COPY

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Table of Contents

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I. The Existing Framework Provides Strong Protection for

Associational Interests ...........ccccecsecees 7

A, TED PE OD no cede eedewcccecs 7

1. The Importance of Private Associations .. 8

2. The Anti-Discriminaticn Principle .... . . 9

B. The Present Framework ...........-ese00. 19

1. Constitutional Protection of Expressive

SE cadets Wiss de cvbuvendeuwe 10

2. Further Safeguards ................. 12

Il.

This Court’s Decisions Offer No Support for the Broad

Right to Discriminate BSA Asserts ............ 15

A. Under this Court’s Cases, Discrimination

GUN SEE 046n5.d0000bnnnetneesend 16

B. Roberts — as Decided by This Court — Does Not

pee err er 19

III. The Court Should Not Reinterpret the Constitution s° 4s

to Broadly License Civic Groups to Discriminate ..-- 23

A. Constitutional Text, Structure, and History DO

Not Suppor’ an Absolute Right to Exclude ... 23

B. There is No Constitutional Warrant To

License for “Non-Commercial” Discrimination 27

C. The Approach Embodied in New Jersey Law is 4

CE Cad ee dcenksbieuvens sxe .. 29

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Table of Authorities

Cases

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ..... 22

Associated Press v. NLRB, 301 U.S. 103, 130 (1937) .. 6,24

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ....... 18

Board. of Dirs., Rotary Int’! v. Duarte Rotary Club,

Dn. «cites nc eueeebedecedeeseul passim

Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .. 4,6

Branzburg v. Hayes, 408 U.S. 665 (1972). ............. 25

Castaneda v. Partida, 430 U.S. 482 (1977) ............. 19

Clark v. Community for Creative Non- Violence,

SL ED « cise pbedeteedestebédaddoesns 22

E.E.0.C. v. University of Pennsylvania,

Se SE Abbe cddcécddevec cvncecucs< 6, 22, 24

Evans v. Ross, 57 N.J. Super. 233 (App. Div. 1959) ..... 30

First Nat. Bank v. Bellotti, 435 U.S. 765 (1978)....... 6, 28

44 Liquormart, Inc. v. Rhode Island,

ss oka diecdesedadeaduenoess 25

Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963) . 2

-iii-

Green v. New Kent County Sch. Bd, 391 U.S. 430 (1968) .. 2

Hausch v. Donrey of Nevada, Inc., 833 F. Supp. 822

A Ge GHEE oc cuscsscecaccadeceescéananecoetl 24

Heffron v. Int'l Soc. For Krishna Consc.,

GSE Gee 0 bh ccececectedsecesococcccoeses 22

Hishon v. King & Spalding, 467 U.S. 69 (1984) . 4, 7, 24,27

Hurley v. Irish-American Gay, Lesbian

and Bisexual Group, Inc, 515 U.S. 557 (1995) .......... 5

J.E.B. ex. Rel. T.B. v. Alabama, 511 U.S. 127 (1994) .. 9,19

Johnson v. Degrandy, 512 U.S. 997 (1994) ............ 13

Jones v. Alfred O. Mayer, 392 U.S. 409 (1968) .......... 28

Katzenbach v. McClung, 379 U.S. 294 (1964) .......... 29

Knights of Ku Klux Klan v. East Baton

Rouge Parish School Bd, 578 F.2d 1122 (Sth Cir. 1978) .. 15

Lochner v. New York, 198 U.S. 45, 76 (1905) ........... 3

Louisiana v. N.A A.C.P., 366 U.S. 293 (1961) ........... 2

Marsh v. Alabama, 326 U.S. 501 (1946) ...... Seccdces 29

McKennon v. Nashville Banner, 513 U.S. 352 (1995) .... 15

Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 24

-iv-

N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964) ...... 2, 8, 10

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .......... 2, 25

New York State Club Association v. New York City,

Se eh Ce edb adiinwbetnccosks éddeuceke passim

N.O.W. v. Little League Baseball, Inc., 67 N.J. 320 (1974) 29

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........ 24

Pittsburgh Press v. —_— Relations Comm’n,

Se niddddeheddsncseesbbscsccs 6, 18, 28

Plessey v. Ferguson, 163 U.S. 537 (1896) .............. +

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 14

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) 27

Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ........ 3

Roberts v. United States Jaycees, 468 U.S. 609 (1984) passim

Romer v. Evans, 517 U.S. 528, (1996) ........ 2, 13, 17, 29

Runyon v. McCrary, 427 U.S. 127(1976) ........ 3, 17-18

Shelley v. Kraemer, 334 U.S. 1 (1948)................. 2

Smith v. Allwright, 321 U.S. 649 (1944) ............... 2

Tony & Susan Alamo Foundation v. Secretary of Labor,

PU IE vis coccucdus cocuckntedkdekn 22

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United Food & Commercial Workers v. Brown Group, Inc,

SIDED, SIE 6 hc ud ScadebedebeCesestveuas 22

United States v. Burke, 504 U.S. 229 (1992) ........... 10

United States v. Virginia, 518 U.S. 515 (1996) ....... 8, 13

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..... 21

Statutes and Rules

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-vi-

Other Authorities

A. de Tocqueville, Democracy in America (J.P. Mayer, ed.

SEED: AWA Addn edema deds b46cnwecdkde Chindecs 3,9

Wesbster’s New World Dictionary,

Second College Edition (1980) ...................... 5

Z. Chaffee. The Internal Affairs of Associations Not for Profit,

IR i a ee ee SE 26

F. Easterbrook, Implicit & Explicit Rights

of Association, 10 Harv. J.L.Pp. 92, 99 (1986) .. 25, 26, 28

H. Wechsler, Toward Neutral Principles of Constitutional Law,

pc db bcduedtceuckeéwdcecdecks 4

Brief for Resp., Hishon v. King & Spalding ............ 4

http://www.lawnews.net/lawfirms/surveys

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Statement of interest"

Amicus the National Association for the Advancement of

Colored People (N.A.A.C.P.) is the Nation’s oldest, largest, and

strongest civil rights organization. For more than nine decades,

it has worked to promote, through peaceful means, equal

education and other basic civil rights and to hasten the end of

segregation and racial violence.

The N.A.A.C.P. maintains 2,200 chapters in all 50 States,

the District of Columbia, and several foreign countries. Its

members now number more than 500,000, and -- as has been true

since its inception -- include individuals of all racial, religious,

and ethnic backgrounds.

The N.A.A.C.P. and its members know first hand the

critical contributions that independent, voluntary organizations

make to our Nation’s civic, cultural, and political life — as well

as the personal satisfaction and enrichment that come from

service to one’s community. N.A.A.C.P. chapters are actively

_involved in improving the safety, health, education, and

economic conditions of the communities where they are located,

with special focus on improving opportunities for young people.

The interest of Amicus in and its experience with the

legal issues this case presents could hardly be stronger. Were it

not for this Court’s readiness to acknowledge and enforce the

N.A.A.C.P.’s_ constitutional rights of association, our

organization could scarcely have survived, and its achievements

— and those of its allies in the movement for African-American

civil rights — would have been far fewer. As the United States

Reports record, the Association weathered an unrelenting, years-

long assault, undertaken by the governments of several States

and motivated by intense hostility toward the objectives of

“Consent to file this Brief has been sought and obtained from both

parties. Pursuant to this Court’s Rule 37.6, Amicus attests that no counsel

for a party had any role in authoring this Brief and no outside party has

made a monetary contribution for its preparation or submission.

equality and non-discrimination to which the N.A.A.C.P. and its

members were committed. See, e.g., Louisianav.N.A.A.C.P.,

366 U.S. 293 (1961); N.A.A.C.P. v. Alabama, 377 U.S. 288

(1964); Gibson v. Florida Legislative Comm., 372 U.S. 539

(1963); N. A.A. C. P. v: Button, 371 U.S. 415 (1963).

No less well, however, is the N.A.A.C.P. acquainted with

the individual and societal harms that have been defended under

the broad banner of “privacy” and “freedom of association.” It

does not overstate matters to say that almost every significant

civil rights victory —- from the end of the white primary, Smith v.

Allwright, 321 U.S. 649 (1944), to the invalidation of racially

restrictive covenants, Shelley v. Kraemer, 334 U.S. 1 (1948), to

the fight for desegregated schools, Green v. New Kent County

Sch. Bd, 391 U.S. 430 (1968), to the fight for federal equal

employment, fair housing, and public accommodations

legislation, see 78 Stat. 253 — was opposed on the ground that it

posed an intolerable threat to “freedom of association. ” See also

Romer v. Evans, 515 U.S. 528, 536; cf. Brief for N.A.A.C.P. as

Amicus Curiae, Railway Mail Ass’n v. Corsi, No. 44-631 at 20

(arguing that “voluntary associations” should be open to all, on

reasonable terms).

Thus, although the Nation’s progress toward equality

owes much to judicial recognition of free association rights, so,

too is it indebted to the refusal to accord uncritical acceptance to

broad assertions of rights of privacy and association.

Although, as even Petitioners presumably would

acknowledge, the perceived “threat” at issue here is different in

kind from those historically directed at Amicus, we do not

believe that the freedom of association concerns in cases such as

this one are insubstantial, nor, as the Briefs filed by Petitioners

and a number of their supporters in this Court seem to assume,

does support for the decision below evince an underestimation of

the significance of the role civic groups play in our Nation’s life.

To the contrary, Amicus is convinced that anti-discrimination

laws — and judicial review thereof — must operate with sensitivity

to speech, associational, and privacy rights; but we also believe

that New Jersey’s law and this Court’s existing doctrine meet

that test. If anything, it is not underestimation, but rather our

deep appreciation for the role that civic groups pay in the lives

of their members and their communities that impels the

N.A.A.C.P. to urge this Court’s adherence to its current,

measured approach.

Summary of Argument

General propositions seldom decide particular cases.

See Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J.,

dissenting). If this case were, as some suggest, a simple

referendum on “freedom of association,” “free speech,” or the

special importance of civic groups in American life, there is no

doubt on which side Amicus would come down - indeed, it is

hard to imagine that a credible opposition could be mustered, let

alone one that could persuade a State Supreme Court to

unanimous judgment. First-hand experience has confirmed both

the importance of judicial protection for rights of association and

the wisdom of Tocqueville’s observation that there is a

“necessary connection between associations and equality,” A. DE

pm tte » DEMOCRACY IN AMERICA (J.P. Mayer, ed. 1969)

But this case cannot be resolved by resort to such

majestic abstractions -- nor by invocation of the contemporary

bugbears of “compelled diversity” or “political correctness.”

Rather, this case requires the Court to traverse familiar, albeit

sensitive, constitutional terrain. As in several earlier cases, see,

fe Demems Lata Sistas Jeeeaas, 468 U.S. 609 (1984);

Railway Mail Ass’n v. Corsi, S. 88 (1945); Runyon v.

McCrary, 420 U.S. 127, 175-76 (1976), hts of is asked to

review the balance struck between an entity’s asserted interest in

3

prescribing exclusionary membership criteria and the power of

the government to protect members of vulnerable groups from

the sting of discrimination.

Like this case, those earlier ones were litigated at a high

rhetorical pitch. It was predicted, for example, in New_York

Ww , 487 U.S. 1 (1988),

that treating large, private clubs as public accommodations would

deny “millions of men and women” the benefits of civic

participation and would “diminish [the] diversity and pluralism

which private organizations have played such an important role

in developing,” Brief Amicus Curiae of Conference of Private

Organizations, and in Hishon v. King & Spalding, 467 U.S. 69

(1984), the Court -was warned that applying Title VII to a law

firm partnership decision would “strike at the very hand that

holds the shield against the Executive Branch of Government,”

Brief for Resp. at 13; cf. H.Wechsler, Taenel Newel Exlnose

of Constitutional Law, 73 HARV. L. REV. 33 (1959)

(suggesting that Court’s decision hal Al BP

impermissibly infringed white parents’ rights of free

association).

‘Petitioners object to the use, in the decision below, of terms such

as “prejudiced” or “bigoted” and treat those terms as evidence that the New

Jersey Supreme Court’ s legal judgment was clouded by its animosity toward

the Boy Scouts. Pet. Br. at 28, 44. This complaint is not a new one: the

defendant ir, Jaycees took similar umbrage at being labeled a discriminator,

as did the Appellant in Bob Jones Univ. v. United States, 461 U.S. 574

(1983). Indeed, such protestations long predate those cases, see, €.2.,

Plessey v. Ferguson, 163 U.S. 537, 551 (1896) (asserting that plaintiff had

no basis for assuming that forced racial separation“stamped the colored race

with the badge of inferiority”). The insistence that telling a gay child — or

the child of a gay parents — — that all homosexuals, including individuals the

had formerly seen fit to elevate to the rank of Eagle Scout, are

morally “{un]}clean” is not “anti-gay,” Pet. Br. at 46, evinces that same sort

4

. But experience teaches not only that these dire

predictions are overdrawn but that the very parties who

(unsuccessfully) advanced them have subsequently flourished.’

This fact is itself a testament to the soundness of this Court’s

decisions in this area — to (1) their evident respect for the

important values on both sides; (2) their care to distinguish

between what was truly fundamental and what was bluster; and

(3) their admonition that courts confronting demands for

exemptions from anti-discrimination laws pay close attention to

the particular facts involved, see, e.g,, Roberts, 468 U.S. at 620.

; Indeed, as much as Amicus recognizes the unique role

that independent, civic institutions play and the ways in which

our national life would be impoverished were the vitality of this

sector to be impaired, we respectfully submit that the dangers this

case poses all fall on the other side of the ledger. Simply put,

Petitioners here do not ask the Court to correct a lower court’s

misapplication of controlling doctrine: they seek to re-write the

legal standards established by this Court’s decision in Roberts

and its progeny, replacing the nuanced and fact-intensive

inquiries called for in those cases with what would essentially be

of blindness. Although the First Amendment protects Petitioners’ freedom

to think and say “‘hurtful’” things, id. at 25 (quoting Hurley _v.

Irish-American Gay, Lesbian and Bisexual Group, Inc., 515 U.S. 557, 574

28 557, Wa tieaee

assertion which is, as a matter of New Jersey law and plain English,

prejudice, see Wesbster’s New World Dictionary, Second College Edition

(1980) at 1122 is, in fact, “respect.” Pet. Br. at 47.

“Cf http://www.lawnews.net/lawfirms/surveys/1999AmLaw200.htm!

(noting that defendant in Hishon case had $231 million in annual revenues,

reflecting a 20.9% annual rate).

a carte blanche for discrimination by non-governmental actors.”

Such a departure is neither necessary nor consistent with broader

First Amendment principles -- or with this Court’s many

important anti-discrimination precedents -- and it would

needlessly hamper the efforts of State and local governments to

secure for all their citizens equal opportunity.

Amicus does not agree, moreover, that a constitutional

line should be drawn between commercial and noncommercial

entities, whereby the latter would enjoy an absolute immunity

under anti-discrimination laws. First, as important as private

associations may loom in the contemplation of the First

Amendment, the text, structure, and history of the Constitution

foreclose the assertion that they have a greater claim to special

protection than do university faculties, the press, or labor unions

-- all of whom have been subject (over vigorous protest) to civil

rights statutes -- as well as to other laws of general applicability,

see, e.g., E.E.O.C. v. University of Pennsylvania, 493 U.S. 182

(1990); Pittsburgh Press v. Human Relations Comm’n, 413 U.S.

376 (1973); see also Bob Jones; see generally Associated Press

v. NLRB, 301 U.S. 103, 130 (1937). Indeed, if the righit to select

associates is treated as uniquely determinative of the voice with

which an entity speaks, it is hardly clear that the First

Amendment could tolerate a distinction between profit-making

and not-for-profit entities, First Nat. Bank v. Bellotti, 435 U.S.

765, 784 (1978).

Such a standard, moreover, would not do justice to the

values on either side of the equation: the intensity, duration, and

interdependence of a person’s relationship with a law partner,

*Indeed, it is telling that Petitioners’ Brief barely attempts to parse

the opinion of the five-Justice majority in Roberts, instead treating a

concurring opinion as if it stated the case’s holding, see Pet. Br. at 34.

6

see Hishon , 467 U.S. at 78, can often exceed that experienced

with a fellow member of a social club or boy scout troop, and the

seriousness of the tangible and intangible harms flowing from

being denied access to educational or other non-commercial

opportunities can far exceed those which attend being denied

access to a “motion picture house . . . or other place of exhibition

or entertainment,” 42 U.S.C. § 2000a(3).

By contrast, the current legal regime, where laws like

New Jersey’s, whose application depends primarily on the

manner and extent to which an organization holds itself out to the

public, are tested under a standard that looks to the actual

substance of the allegedly unconstitutional imposition, is more

= to home in on the important constitutional values on both

sides.

ARGUMENT

I. The Existing Framework Provides Strong Protection

for Associational Interests

A. The Need for a Balance

Petitioners and their amici contended that the First

Amendment cannot countenance the sort of vigorous application

of anti-discrimination protections at issue here, i.e., that the very

benefits of civic involvement that contribute so powerfully to the

vitality of American political life would be jeopardized if a State

could forbid an organization such as BSA from relying on

legislatively proscribed criteria in making membership decisions.

A decision upholding the New Jersey Supreme Court, Petitioners

and their amici warn, risks dooming the pluralism and diversity

that so enrich the Nation and consigning its voluntary

associations to a dreary homogeneity. See Pet. Br. at 19-20.

Petitioners respectfully submit that the stakes are not

nearly so high. Experience shows that the benefits of free

7

association and those of equal treatment are far more compatible

in practice than they may be made to look in theory. Where

tensions do arise, the present approach, as embodied in statutes

like New Jersey’s and decisions like Roberts, provides needed

safeguards for interests of privacy and expression without

stinting the important values on either side.

1. The Importance of Private Associations

There is much in the Brief of Petitioners and those of its

amici with which we could not disagree. At the outset, we must

acknowledge the pivotal role that judicial recognition of

associational freedom played in enabling individuals historically

_ subject to class-based discrimination to push to make our Union

a “more perfect” one, United States v. Virginia, 518 U.S. 515,

558 (1996); N.A.A.C.P. v. Alabama. In times of unrelenting

governmental hostility, voluntary associations, sheltered by the

First Amendment, have proved an important -- and often the only

-- reliable refuge.

And it should be apparent to the point of being subject

to judicial notice that volunteer groups play a unique and salutary

role in the political, cultural, religious, and civic life of the

Nation. An estimated 82 percent of Americans belong to at least

one voluntary association, with tne average person belonging to

4.1; over 109 million American adults volunteered in 1998,

committing a total of 19.9 billion hours — the equivalent of a full-

time work force of 9 million — contributing an estimated $225

billion. In this regard, Amicus takes just pride in its

contributions: local N.A.A.C.P. chapters sponsor educational, job

training, and public health initiatives that make a real difference

in young people’s lives.

This pronensity to establish and join associations, this

Court has recognized, is indicative of an important strand of the

American national character. And this Court’s cases, echoing

Tocqueville’s famous observations, have highlighted the close

links between private civic activism and the health and vitality of

the Republic.

[C]ertain kinds of personal bonds have played a critical

role in the culture and traditions of the Nation by

cultivating and transmitting shared ideals and beliefs;

they thereby foster diversity and act as critical buffers

between the individual and the power of the State.

Roberts, 468 U.S. at 618-19.

Finally, the rewards of civic activism do not redound only

to the common weal. N.A.A.C.P. members and other Americans

who participate in voluntary associations, service organizations,

and clubs derive immense personal satisfaction from those

activities.

2. The Anti-Discrimination Principle

This case arises out of the efforts of the people of New

Jersey to secure these important benefits for all of its people,

irrespective of their race, ethnicity, gender, religious background,

or sexual orientation. Although the anti-discrimination principle

— the proposition that it is wrong to treat a person simply as a

member of a disfavored group, rather than judging him or her on

individual talents — took far longer to take root in our Nation’s

constitutional tradition, see, ¢.g.,J.E.B. v. Alabama ex Rel. T.B.,

511 U.S. 127 (1994), it is now a permanent fixture.‘ Acts of

“Indeed, Democracy in America itself reminds how late recognition

of this truth was in coming. Speaking of the relative status of men and

women in the United States, Tocqueville condemned those who would

attribute the same functions to both [sexes], impose the same

duties; [and] have them share everything — work, pleasure, public

9

invidious exclusion, it is now recognized, can cause grave

personal harm, see, e.g., United States v. Burke, 504 U.S. 229,

238 (1992), and, as is true of the benefits of free association,

these harms ramify far beyond the individual. Thus, the New

Jersey Legislature concluded in enacting the statute at issue in

this case, “Discrimination threatens not only the rights and

privileges of the inhabitants of [the State], but menaces the

institutions and foundations of a free democratic State” N.J.Stat.

Ann. 10:5-3.

B. The Present Framework

1. Constitutional Protection of Expressive Association

As has already been noted, every effort to extend the

ambit of the anti-discrimination principle has met concerns —

often sincerely held, but just as often, badly overstated — that

fundamental freedoms would be compromised. Although this

Court has met the most overwrought of these contentions with

justifiable skepticism, it has also recognized that constitutional

considerations can, in some situations, be substantial.

In Roberts, the Court recognized that constitutional

protection for associational freedoms extends beyond the right of

privacy, i.e., those especially close relationships needed in order

to “independently . . . define one's identity that is central to any

concept of liberty.” Invoking NAACP v. Alabama, 357 U.S. 449

(1958), Roberts affirmed that the First Amendment not only

protects individual speech, but also the freedom to band together

for expressive purposes.

But the mere fact of a group’s involvement in expressive

affairs. It is easy to see that this sort of equality forced on both

sexes degrades them both, and that so coarse a jumble of nature’s

works could produce nothing but feeble men and unseemly

women.

DEMOCRACY IN AMERICA at 601.

10

activities, Roberts teaches, is not enough in itself to exempt it

from regulation under anti-discrimination laws. Rather, the

relevant question was whether evidence existed that enforcement

of the civil rights law would “impede the organization's ability to

engage in these protected activities or to disseminate its preferred

views,” 468 U.S. at 627. In the case of the service organization

respondent, which had a “creed of promoting the interests of

young men,” id., Roberts refused to presume that admitting

women would “require{] [a] change” in that creed, nor would it

restrict the organization's ability to exclude individuals with

ideologies or philosophies at odds with those of its existing

members. The Court then rejected a contention that admission

of women as voting members would “impair a symbolic message

conveyed by the very fact that women are not permitted to vote”

or that it would dampen the effectiveness of Jaycees’ expression

“because of the gender-based assumptions of the audience,” id.

Subsequent decisions have elaborated on this approach.

In Board. of Dirs., Rotary Int'l v. Duarte Rotary Club, 481 U.S.

537 (1987), which again involved a challenge to application of

a public accommodations statute to an all-male membership

organization, the Court looked to whether the evidence in fact

showed “that admitting women to Rotary Clubs [would] affect in

any significant way the existing members’ ability to carry out

their various purposes,” and concluded that the challenged

California law did not require the petitioner club to “abandon or

alter” its “basic goals of humanitarian service, high ethical

standards in all vocations, good will, and peace.””

‘See also id. (classi :-discriminati etheteten

that address harms “distinct from their communicative impact”).

*Id at 548 (noting that “opening membership to leading business

and professional women in the community,” would likely “broaden{]

1]

In disposing of a facial challenge to a law extending the

reach of an anti-discrimination ordinance to large clubs, New

York State Club Ass’n once more inquired whether the law

would affect “‘in any significant way’ the ability of individuals

to form associations that will advocate public or private

viewpoints.’”487 U.S. at 13 (quoting Duarte, 481 U.S. at 548).

This trilogy of decisions has, in turn, been applied by

numerous State and federal courts confronted with claims that

particular anti-discrimination laws or applications thereof

unconstitutionally impair rights of association. As would be

expected, the outcomes of these cases have depended on’ the

particular groups and statutes involved.

2. Further Safeguards

The Roberts framework is not the sole — or even the

primary — source of protection for these important societal and

constitutional values. While many States and localities have seen

fit to broaden gradually the sweep of their anti-discrimination

laws, see Roberts, 468 at 624, 626, the reach of these statutes

remains subject to important limitations. See New York Club

Ass’n, 487 U.S. at 18 (O’Connor, J., concurring) (finding that

challenged statute was an appropriately “sensitive tool[]” for

balancing interests). Statutes like New Jersey’s expressly exempt

from anti-discrimination obligations institutions that are

“distinctly private,” irrespective of the number of members, for

example, and other laws apply only to entities of a particular size,

see 42 U.S.C. §3603(b)(2) (so-called “Mrs. Murphy” exemption

to the Fair Housing Act); id. § 2000e(b)(2) (limiting Title VII to

firms with 15 or more employees).

There is great variation, as well, in the classifications

that may or may not be relied upon; thus, in Massachusetts, but

[Rotary’s] capacity for service”).

12

not in Nevada, it is impermissible to base a decision on marital

status, see Mass. Gen. L. §37.2301. In other jurisdictions, certain

categories of employer or landlord are placed entirely outside the

regulatory framework, and in still others, the bar on considering

a particular trait is less than complete. The federal laws

prohibiting religion- and gender-based employment

discrimination allow for reliance on those considerations when

they are “bona fide occupational qualification{s],” 42 U.S.C. §

2000e-2(e)(1), and Title VII permits religious or religiously

affiliated entities to distribute burdens and benefits based on

religion even where the same actors’ sex- or race-based

discrimination would not be allowed, see 42 U.S.C. § 2000e-1.’

These legislatively established rules remain subject to

__ revision through the ordinary “pull{ing]” and “haul{ing]” of the

democratic process, Johnson v. Degrandy, 512 U.S. 997, 1020

(1994). See Virginia, 515 U.S. at 561 (Scalia, J., dissenting).

And it might be noted that the BSA — which claims some 5

million current members, tens of millions of alumni, and the

President of the United States as its Honorary President, is likely

not without power in this arena. Cf, 10 U.S.C. § 2544; 16 U.S.C.

§ 539f (according BSA special right to use certain types of

federal property).

"A number of States, including Mississippi, Georgia, and Alabama,

have not seen fit to provide any protections against discrimination beyond

those provided by Congress. +

*Nor, of course, would BSA likely have to go it alone. As noted

above, many of the more than a hundred million “joiners” in the Nation

presumably would give a sympathetic ear to claims that particular laws or

enforcement regimes posed an unacceptably high threat to the voiuntary

sector. Cf. NJ Stat. Ann. 2A:53 A7 (providing limited charitable tort

immunity); Mass Gen. Laws h. 231, § 85K (limiting plaintiff's tort recovery

to $20,000).

13

Moreover, as the Court has repeatedly emphasized, anti-

discrimination laws do not deprive covered entities of the power

to exclude generally or even of the power to exclude individuals

who happen to be members of legislatively recognized “protected

classes” — only the freedom to base exclusion decisions on

characteristics that have been legislatively determined to

correlate poorly with individual talent and to have operated

systematically to disadvantage classes of people. See New York

Club Ass’n, 481 U.S. at 13 (recognizing possibility that some

association “might be able to show . . . that it will not be able to

advocate its desired viewpoints nearly as effectively if it cannot

confine its membership to those who share the same sex,” but

noting that in general, the law “merely prevents an association

from using race, sex, and the other specified characteristics as

shorthand measures in place of . . .more legitimate criteria for

determining membership”); accord Price Waterhouse v. Hopkins,

490 U.S. 228, 239 (1989) (plurality opinion) (explaining that

“Title VII eliminates certain bases for distinguishing among

employees while otherwise preserving employers’ freedom of

choice”).”

Finally, the process self-selection itself operates a potent

force. Contrary to the implication of Groucho Marx’s celebrated

dictum, many people do not want to be a member of a club that

would not have them (at least where exclusion would be based

*Ordinarily, Petitioners’ contention that their actions were taken on

account of Dale’s “views” rather than his status, might make the issue a

closer one. But Petitioners did not base their decision on Dale’s actua!

“views” — indeed, their policy excludes “known” homosexuals, whatever

their views — they inferred the objectionable “philosopt'y” from his sexual

orientation. Even more important, the “views” attribu.. 1 to Dale, i.c., that

there is nothing “unclean” (as that term is used in Boy Scout law) about

homosexual orientation, undeniably are held by others whom Petitioners

have permitted to continue serving as leaders and sponsors of scouting.

14

on antipathy to his or her status or minority group membership).

Rouge Parish School Bd, 578 F.2d 1122, 1127 & n.5 (5" Cir.

1978) (noting unresolved factual question whether KKK

maintained racially discriminatory membership policy, noting

that no African American had yet joined and that “one may well

wonder why any would wish to”’).

In this respect, this case is an unusual one: it involves an

individual whose bona fide commitment to the values of the

association he seeks to join is beyond serious question, and who

has a track record of discharging the responsibilities for which he

is now deemed unfit — including, presumably, those relating to

conveying (however obliquely) BSA’s “message” as it concerns

sexuality and cleanliness — to the evident satisfaction of

Petitioners. And it involves an allegedly intolerable belief

(imputed by Petitioners’ to Dale) that Petitioners’ heterosexual

members — and religious and governmental sponsors — have

continued to voice with far less draconian consequences. '°

Il. This Court’s Decisions Offer No Support for the

Broad Right to Discriminate BSA Asserts

Although Petitioners insist that their constitutional claim

Petitioners suggest that Dale’s statements after filing this suit are

not only relevant but are sufficient to defeat his claim of status-based

discrimination, on the ground that his later words are a genie that “cannot

be put back in the bottle,” Pet. Br. at 29. This argument is a familiar one in

anti-discrimination law and generally is resolved by placing the burden on

the culpable defendant to show that the otherwise appropriate relief would

be inequitable. Cf, McKennon v. Nashville Banner, 513 U.S. 352 (1995).

To the extent that BSA contends that the post-expulsion statements

represent his “true” purpose in seeking to participate in scouting, that is

manifestly inconsistent with a ten-year involvement devoid of any sign of

objection to BSA teaching.

15

is based on a reading of this Court’s cases, the unmistakeable

thrust of their argument is that the rules developed in Roberts and

its progeny are insufficiently solicitous of free association

considerations and not appreciative enough of the contribution

that voluntary associations play in American life. But the “test”

that Petitioners would install as a replacement is one that no

discriminator (or at least none represented by counsel) could fail.

Indeed, not only would Petitioners’ version of the legal standard

have yielded different results in the Roberts case and progeny,

but, if seriously applied, it would distort First Amendment

doctrine more generally and open a “constitutional” loophole in

widely accepted anti-discrimination protections.

A. Under this Court’s Cases, Discrimination is Not

“Speech”

Improbably, Petitioners have chiefly claimed that it is not

the Roberts line of cases — all of which dealt specifically with the

interplay between voluntary associations’ membership policies

and State anti-discrimination law — but rather Hurley, that should

supply the rule of decision for this case. Like that case,

Petitioners insist, this one involves “forced speech”: to require

those who operate public accommodations to admit homosexuals

(or African Americans, women, or disabled people, presumably)

on a nondiscriminatory basis, they say, is to force those entities

to “conform” their speech and beliefs to a “State-sponsored

orthodoxy” on the “issue” of the propriety of equal treatment of

members of that minority group. See, e.g. Pet. Br. at 22-23.

Compelling BSA to admit James Dale is constitutionally no

different (or, if anything, it is worse), Petitioners suggest, than

was the order requiring a private parade organizer to allow a gay

rights group to march in its parade.

Even in circumstances where subtle distinctions are far

less critical, the analogy Petitioners advance would be a doubtful

one. Setting aside the differences between a parade — which has

16

both the purpose and effect of communication with an audience,

see Hurley, 515 U.S. at 569 (noting observation that “if a parade

or demonstration receives no media coverage, it may as well not

have happened’”) — and an ongoing membership group such as

Boy Scouts, the analytically correct parallel would be a Boston

parade that: (1) had excluded all gay or even all openly gay

persons, on the ground that their status conveyed a “message,”

compare Hurley at 572 (noting that “petitioners disclaim[ed] any

intent to exclude homosexuals as such”); (2) had permitted to

march non-gay groups eager to voice the same message of equal

treatment irrespective of sexual orientation that GLIB was

prevented from contributing; and (3) excluded GLIB members,

based not on what they sought to say in the parade, but rather

based on what they were assumed to believe.

The distinctions that Petitioners would brush aside —

between the act of discrimination and belief in the rightness of

discrimination and between a person’s race, gender, or sexual

orientation and her set of beliefs on issues pertaining to those

topics — are not mere technicalities, they are the lynch-pins of a

well-functioning constitutional law. Simply put, if Petitioners

were right, every application of anti-discrimination law would be

forced speech, in the sense that requiring a defendant to hire,

feed, house, or employ an individual would be tantamount to a

“compelled endorsement” of the proposition that persons who

have that plaintiff's background characteristics should not be

excluded from the opportunity in question on that basis.

Such a regime, in which all anti-discrimination law

would arrive with a presumption of unconstitutionality, would be

unacceptable in its own right, and, indeed, the very argument

Petitioners advance has been presented to and explicitly rejected

by this Court. The private school defendants in Runyon argued

that requiring a black applicant’s candidacy to be evaluated on

race-neutral grounds would compromise their ability to teach

students their views about the desirability of racial segregation.

17

This Court answered that:

assum{[ing] that parents have a First Amendment right to

send their children to educational institutions that

promote the belief that racial segregation is desirable, and

that the children have an equal right to attend such

institutions[,] it does not follow that the practice of

excluding racial minorities from such institutions is also

protected by the same principle.

427 U.S. at 176; accord Roberts, 468 U.S. at 627 (observing that

admission of women “requires no change in the Jaycees' creed of

promoting the interests of young men”); see also Pittsburgh Press

y. Human Relations Comm’n, 413 U.S. 376, 390 (1973)

(contrasting First amendment protections for advertisements

offering employment on a discriminatory basis and those which

might express an opinion on the underlying wisdom or legality

of the ordinance prohibiting discrimination).'°

Indeed, even if Runyon were not specifically on point,

the “Free Speech” analysis propounded by Petitioners could not

prevail. It is a starting point of this Court’s jurisprudence that

requiring one who objects to federal taxation to pay his

statutorily mandated share of taxes is not the same as forcing him

to conform to the government’s view as to the morality or

legality of a graduated income tax, nor does it deprive him of the

freedom to express that belief. See, e.g., Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991) (Scalia, J., concurring) (“[V]irtually

every law restricts conduct, and virtually any prohibited conduct

‘There is no merit to distinguishing Runyon on the ground that the

statute involved, 42 U.S.C. § 1981, was enacted pursuant to the

extraordinary power conferred by Section 2 of the Thirteenth Amendment.

The Section 2 enforcement authority, however, is only extraordinary relative

to other powers delegated to Congress, i.¢., enabling the federal government

to regulate local matters that States can address as a routine exercise of their

police powers.

18

can be performed for an expressive purpose -- if only expressive

of the fact that the actor disagrees with the prohibition”)."'

B. Roberts — as Decided by This Court — Does Not

Assist Petitioners

Petitioners also maintain that rights of “expressive

association” are violated by New Jersey’s law. According to

Petitioners, the main vice of the decision below was in the New

Jersey Supreme Court’s determining for itself whether applying

the Law Against Discrimination to Petitioners’ policy would

actually impair BSA’s ability to carry out the expressive

purposes for which its members have joined together. Petitioners

contend that instead of determining independently what BSA’s

“message” was, the New Jersey courts should have deferred to

Petitioners’ representations concerning both the meaning of

“their message” and the means chosen to transmit it, ie.,

“quietly,” through negative implications of affirmative

commands, and through “role modeling.”

Petitioners make only a half-hearted effort to argue that

this Court’s controlling case law requires, for as the New Jersey

Supreme Court rightly perceived, Roberts and its progeny would

be decided differently if “expressive association” claims were

entitled to the sort of supine deference upon which Petitioners

insist. If the Court had been required to accept as controlling an

organization’s explanation of its “message” -- including

“teachings” unknown to the club’s own membership — and if it

were constrained to defer to the club’s chosen “means”of

"Nor should the second error of the Hurley analogy be

underestimated. To assume that an individual's “views and beliefs” — ev

on the issue of how people of his race, religion, or sexual orientation should

be treated — can be inferred from his or her status as a member of a group

would be to unlearn the lessons of this Court’s modern anti-discrimination

teaching. See J.E.B.; Castaneda v. Partida, 430 U.S. 482, 499-500 (1977).

19

expressing it — including through silence and “role modeling,”

then the assertions of the defendants in this Court’s Rotary Club

and Jaycees cases should have received a different reception.

Just as BSA insists that its implicit “message” concerning

sexuality must come from a non-homosexual, the Jaycees

contended that their speech concerning the interests of young

men would be heard differently if uttered by an organization

comprised of men and women. See Roberts, 468 U.S. at 627.

And while Petitioners assert that the Court’s inquiry was

limited to scrutinizing defendant’s means to their asserted ends,

the Duarte decision, no less than the Supreme Court of New

Jersey, inquired what the defendant’s “basic” purposes were.’

If litigants were granted such boundless freedom to

define “ends” and “means” in a manner that would make

application of anti-discrimination laws unconstitutional, those

statutes would loom as paper tigers. Only the most inept

discriminator could not escape liability on “constitutional”

grounds, i.e., by asserting that gender or racial difference was a

facet of its “message” — if only a small and little-known

component of it — and that this philosophy was conveyed by the

race and gender of its membership. If Petitioners’ “test” were the

law, it would, as is claimed, Pet. Br. at 45, protect the power of

the Women Anglers of Minnesota to exclude men — but it would

also give that group a “constitutional right” to exclude African

Americans, disabled people, or Catholics, and it would allow the

National Association of Coin Dealers or Cat Fanciers, not to

mention the Jaycees, to impose exactly those same restrictions.

Whatever one might think of that result, it is surely not the

Roberts rule.

'2Indeed, the concurring opinion in Roberts looked to the former

name of the organization to detect its true purpose, see id. at 639 (O’ Connor,

J., concurring), an exercise presumably no less constitutionally delicate than

the New Jersey Supreme Court’s reading for itself the Boy Scout Manual.

20

But even in a regime that treated as conclusive BSA’s

contentions concerning its “teaching” concerning homosexuality,

Le., that it has sought to teach, albeit tacitly, that homosexuality

is “unclean,” BSA would be hard-pressed to explain how Dale’s

abil-ty to convey that message is more compromised than that of

a heterosexual who disagrees with it. Indeed, even where a court

gives a party the sort of deference upon which BSA insists, it

would be authorized to infer discrimination from the manifest

inconsistency between the stated interest — intolerance of certain

beliefs about moral “cleanliness” — and actions, i.e., excluding

“known” homosexuals while continuing to welcome support of

others, the New Jersey government, for example, who are

undeniably committed to the view that exclusion of homosexuals

is “bigotry.””

In fact, the fount of Petitioners’s argument — the

proposition that the judiciary has no business deciding whether

an organization’s expression of its message is impaired is itself

a misstatement of governing law. Where, as here, there can be

no serious claim that the government seeks to target the content

of BSA’s speech (or that of any other entity subject to the

statute), see Roberts, 468 U.S. at 623, it is a mainstay of First

Amendment analysis for courts to determine the extent to which

a particular regulation impairs a speaker’s ability to convey its

message.'* In Ward v. Rock Against Racism, 491 U.S. 781, 801

Petitioners argue that even if Dale could be acquitted of tacitly

endorsing homosexuality, he could be convicted of the Boy Scout sin of

hypocrisy and inconsistency — saying one thing while doing or believing

otherwise. Pet. Br. at 4. If that were true, of course, Defendants do have an

anti-gay policy, after all —- because every non-“avowed” homosexual would

be excludable as a hypocrite while each “known” one would be an apostate,

while equally “inconsistent” non-gay troop sponsors would escape a

comparable fate.

There is no basis for suggesting that New Jersey’s Law Against

21

(1989), for example, the Court considered whether the policy of

controlling the mix had “a substantial deleterious effect on the

ability of [plaintiff] performers to achieve the quality of sound

they desired,” and in Clark v. Community for Creative

Non-Violence, 468 U.S. 288 (1984), the Court upheld a ban on

camping in a public park, notwithstanding the recognized effect

that would have on the composition of a political protest, see id.,

(noting that poor and homeless might not participate if not

provided a place to sleep); See also Heffron v. Int'l Soc. For

Krishna Consc., 452 U.S. 640 (1981).

In Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977),

and its progeny, the Court has undertaken the no less sensitive

task of examining the content of a union’s political speech to

determine which of it can be said to be “germane” to the union’ s

responsibilities as collective bargaining agent, and in Tony &

Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290,

298-99 (1985), the Court declined to credit a religious ministry’s

contention that its marketplace activities were “churches in

disguise -- vehicles for preaching and spreading the gospel,”

entitled to exemption from the Fair Labor Standards Act.. Cf.

United Food & Commercial Workers v. Brown Group, Ine, 517

U.S. 544 (1996) (inquiring in associational standing case whether

Discrimination was enacted with the intent of silencing those who speak out

against homosexuality — or gender equality or religious tolerance; indeed,

religious groups, who presumably are some of the loudest voices on that

side of the issue are generally exempted from the law’s coverage. If New

Jersey had wanted to make trouble for those opposed to equal rights for

homosexuals, it had many less conspicuous and more effective means at its

disposal. See EEOC, 493 U.S. at 200 (observing that unavailability of funds

would have far more serious limiting effect on university's protected

freedom to decide “who will teach” than would alleged compromise of peer

review process).

22

prosecuting litigation is “germane to an organization’s

purpose”). °

III. The Court Should Not Reinterpret the Constitution so as

to Broadly License Civic Groups to Discriminate

A. Constitutional Text, Structure, and History Do

Not Support an Absolute Right to Exclude

It is a broad leap from recognizing, as does Amicus, the

importance of the contribution that civic groups and associations

make to insisting, as Petitioners and their supporters have, that

this contribution entitles them to a special, constitutional

immunity from anti-discrimination laws. As an initial matter,

although the distinctive role played by clubs and associations is

rightly lauded, the claim for a uniquely privileged place in

American constitutional law is not a strong one. However potent

an impression associational activities may have left on visiting

French aristocrats, the Framers of the First Amendment saw fit

to single out two other institutions — the press and religion — for

special textual mention, and the Court’s decision’s concerning

these groups’ assertions of an absolute First Amendment right

'SOn BSA’s logic, the ght approach in cases such as Abood would

be to allow individuals who disapprove of collective bargaining in principle

to opt out of all dues — or, at the least, to allow dissenters to define for

themselves which expenses they believe to be “germane” and which ones

are excessively “ideological.”

'ndeed, the approach taken in the concurring opinion in Roberts,

which E° * and amici urge upon the Court, see infra, does not avoid these

sorts of “entanglements.” At the very best, that approach substitutes one set

of sensitive constitutional judgments for another, conditioning as it does,

“radically” different First Amendment protection on whether an institution’ s

purposes are “predominantly” expressive. 468 U.S. at 638; cf. id. at 637

(acknowledging that the “considerations that may enter into the

determination of when a particular association of persons is predominantly

engaged in expression are .. . fluid and somewhat uncertain”).

23

not to associate must control any ciaim to preferred treatment for

others. Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937),

for example, rejected a news gathering institution’s contention

thai an order requiring reinstatement of an editor was

unconstitutional because the First Amendment conferred

“absolute and unrestricted freedom to employ and to discharge

those who. . . edit the news.” Accord Hausch v. Donrey of

Nevada, Inc., 833 F. Sump. 822 (D. Nev. 1993) (rejecting

publisher’s assertion tat ‘if the United States Government,

through the judiciary's application of Title VII, may exercise

control over who the publisher may choose as editor or associate

editor, then the Government is exercising control over the

content of that publication”).

The Court’s ruling in cases involving education, which

has also been held to implicate special First Amendment

concerns, see Pierce v. Society of Sisters, 268 U.S. 510 (1925),

is to similar effect. Thus, in Runyon, the Court held that neither

the freedom to operate a private school and determine the

substance of its curriculum, see Meyer v. Nebraska, 262 U.S. 390

(1923), nor the “right of parents to send their children to [that]

particular private school,” required an exemption from anti-

discrimination laws with which the school and parents disagreed.

See id. (Powell, J., concurring).

And in EEOC v. University of Pennsylvania, the Court

affirmed that “academic freedom is a ‘special concern of the First

Amendment,’”but declined to re-write the rules of Title VII to

accommodate a university employer. 493 U.S. at 193

(explaining that “[a]cceptance of petitioner's claim would also

lead to a wave of similar privilege claims by other employers

_ who play significant roles in furthering speech and learning in

society. What of writers, publishers, musicians, lawyers?”); see

also Hishon, 467 U.S. at 78 (“Although we have recognized that

the activities of lawyers may make a ‘distinctive contribution . .

. to the ideas and beliefs of our society,’ . . . [the defendant] has

24

not shown how its ability to fulfill such a function would be

inhibited by a requirement that it consider petitioner for

partnership on her merits”) (quoting NAACP v. Button, 371 U.S.

415, 431 (1963)).

These decisions, which, no less than the case at bar, have

the potential to affect the “voice” with which institutions with

strong claims to special First Amendment protection speak on

issues of public concern are not outliers. Rather, they represent

specific application of the general rule that laws which

incidentally or even dispropurtionately burden the press are not

invalid on that ground. See generally Branzburg v. Hayes, 408

U.S. 665 (1972)."*

The suggestion that the Court must choose between the

benefits of a vital independent sector and enforcement of anti-

discrimination laws suffers from a further defect: the assumption

that there is no constitutionally meaningful difference between a

“government takeover” and the limitations on the right to

exclude that anti-discrimination laws entail.

As an initial matter, the absolute freedom that such

arguments presuppose is not well supported in our constitutional

tradition, see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

"Nor, it should be noted, is this a case where reasoning from

constitutional text, structure, and precedent lead to an answer that is at odds

with original intent. To the contrary, one prominent commentator concluded

a survey of the subject by observing that

[t}he Framers wanted to limit the influence of private associations

(factions) . . .None of colonial charters or constitutions address the

subject. The virgina Declaration of Rights does not preserve

private associations. No state asked the First Congress to put

anything about associations in the Bill of Rights — although there

was a proposal on almost everything else one can imagine

Easterbrook, Implicit & Explicit Rights of Association, 10 HARV. J.L.PP. 92,

99 (1986).

25

517 (1996) (Scalia, J., concurring). Even where “distinctly

private” clubs were involved, there are numerous early decisions

upholding the judiciary’s power to order reinstatement of a

member who is expelled, based on the court’s judgment that (1)

the club had failed to follow its own rules; (2) that those rules

were contrary to “natural justice”; or (3) that the decision to

expel the member was “malicious.” See Z. Chaffee. The

Internal Affairs of Associations Not for Profit, 43 HARV. L. REV.

992, 1014-15 (collecting cases); see also Easterbrook , 10 HARV.

J. L.P.P. at 99 (noting that “[nJone of the history of the colonies

hints at a general protection for private associations” and that the

“climate of the Eighteenth and Nineteenth century exalted

individual rather than associational freedoms”)."’

And while defendants have time and again cast anti-

discrimination laws as a total usurpation, this Court’s cases have

long emphasized the extent to which laws forbidding decision

makers from relying on particular characteristics leave intact

important prerogatives. Thus, in the Associated Press case, it

was observed that:

The [NLRA] does not compel the petitioner to employ

any one; it does not require that the petitioner retain in its

employ an incompetent editor or one who fails faithfully

"These decisions often analogized the terms of membership to a

contract, treating the asserted basis for exclusion as if it were a contractual

term that was unenforceable, as contrary to public policy. Summarizing a

number of cases in which expulsion was based on a member’s views,

Professor Chaffee proposed a rule not unlike the test applied in Roberts:

courts should consider, on the one hand, the seriousness of the

injury caused by expulsion and the importance of the [plaintiff's]

right; and on the other hand, the desirability of giving full

autonomy to the association and of permitting it to maintain the

unimpaired loyalty of its members to the purposes for which it is

iously organized.

obviously

43 HARV. L. REV. at 1018.

26

to edit the news to reflect the facts without bias or

prejudice. The act permits a discharge for any reason

other than union activity or agitation for collective

bargaining with employees. The restoration of [the

complainant] to his former position in no sense

guarantees his continuance in petitioner's employ. The

petitioner is at liberty, whenever occasion may arise, to

exercise its undoubted right to sever his relationship for

any cause that seems to it proper save only as a

punishment for, or discouragement of, such activities as

the act declares permissible.

331 U.S. at 132-33. Accord Hishon, 467 U.S. at 78 (Title VII

only requires that partnership candidate be considered on her

individual merits); New York Club Ass’n; cf. Pruneyard

Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (rejecting

assertion that “right to exclude” is sine gua non of property or

free speech rights).

B. There is No Constitutional Warrant To License for

“Non-Commercial” Discrimination

Citing the singular importance of civic participation,

Petitioners(implicitly) and various of their amici (explicitly) also

propose that the Constitution be construed as granting certain

“non-commercial” entities absolute immunity from the strictures

of anti-discrimination laws. See generally Roberts, 468 U.S. at

632-41 (O’Connor, J., concurring). While that proposal would

spare the Court the need to revisit — and overturn -- key (Le.,

~ ial”) anti-discrieninati tents that Petit; :

arguments might otherwise undermine, it would not be sound

Even leaving aside the awkwardness of giving such

entities greater First Amendment license to “creat[e] . . . a voice”

27

than is enjoyed by the press, see supra,"* and its poor fit with

precedent,'? the proposal would suffer from other serious

weaknesses. First, the commercial/non-commercial distinction is

an unreliable proxy for the duration or intensity of any particular

association. Although the relationship between fellow club

members may be assumed to be less transitory than between the

proprietor and a customer of a restaurant, movie theater or other

paradigmatic “public accommodations,” the contact between club

members is by no means more intensive than between neighbors,

see Jones v. Alfred O. Mayer, 392 U.S. 409 (1968), classmates,

Runyon, or law partners, see Hishon. Nor can this Court’s cases

easily be read as allowing a “radical{]” distinction between the

expressive rights of for-profit, as opposed to not-for-profit

entities. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784

(1978); see also Easterbrook, 10 HARV. J.L.P.P. at 98.

Similarly, the harm to the individual is by no means

always lesser when “noncommercial,” rather than economic,

opportunity is what is denied. As Petitioners and their supporters

have taken pains to point out —- and Amicus readily agrees — civic

involvements are an integral aspect of full citizenship and often

reward their participants in ways more important than the

narrowly mercenary. To deny individuals access to these

“To the extent the difference is explained by the fact that

newspaper publishing is a “business,” it must contend with the principle that

“if a newspaper's profit motive were determinative, all aspects of its

operations . . . would be subject to regulation if it could be established that

they were conducted with a view toward increased sales” Pittsburgh Press,

413 U.S. 376, 384-85 (1973) (citing New York Times Co. v. Sullivan, 376

U.S. 254 (1964)).

'*The defendants in Roberts and Duarte,, non-profit associations

dedicated to “fellowship for service,” 481 U.S. at 547, were hardly

quintessential commercial enterprises -- nor were the Appellants in Corsi or

the schools in Runyon.

28

benefits for reasons unrelated to their personal talents, values,

and potential contributions can cause both individual and societal

harm.”°

C. The Approach Embodied in New Jersey Law is a

Sound One

Rather than rely on a distinction based on whether an

entity’s “predominant” purposes are commercial, New Jersey —

and many other States — take a “functional” approach, whereby

the obligation to refrain from discrimination attaches depends on

the extent the entity can be said, objectively, to hold itself out as

“public.” See Roberts, 46: at 625;

Baseball, Inc., 67 N.J. 320 (1974), aff’ g 127 N.J. 522, 531 (App.

Div. 1974). Not only is such an approach broadly consistent

with the common law, see Romer v. Evans, 517 U.S. 620, 629

(1996), but it gives groups substantial control as to whether they

will operate truly privately or whether it will seek the benefits of

more public membership solicitation, Cf. Roberts, 468 U.S. at

636 (O’Connor, J., concurring) (“An association must choose its

market. Once it enters the marketplace of commerce in any

substantial degree it loses the complete control over its

membership that it would otherwise enjoy if it confined its affairs

to the marketplace of ideas”); Marsh v. Alabama, 326 U.S. 501,

506 1946) (“The more an owner, for his own advantage, opens

up his property for use by the public in general, the more do his

rights become circumscribed by the statutory and constitutional

rights of those who use it”). Finally, such a rule protects against

Indeed, the only textual basis for drawing a constitutional

distinction between entities that are engaged in commerce and those which

are not can be found in Article I, which confers upon Congress authority to

regulate commerce. See Katzenbach v. McClung, 379 U.S. 294, 300

(1964). But while congressional power to address private discrimination is

rightly scrutinized for a nexus with commerce, the State police power need

not be.

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the particular “embarrassment and humiliation of being invited[,]

. .only to find [the] doors barred.” Evans v. Ross, 57 N.J.

Super. 233, 231 (App. Div. 1959).”!

Conclusion

Because the New Jersey Supreme Court correctly applied

this Court’s teaching — and because Petitioners have advanced no

sound basis for rewriting the law — the decision below should be

affirmed.

Respectfully submitted,

DAVID T. GOLDBERG DENNIS C. HAYES

227 Garfield Place Counsel of Record

Brooklyn, N.Y. 11215 N.A.A.C.P.

(718) 789-5584 4805 Mt. Hope Drive

Baltimore, MD 21215

(410) 486-9191

Attorneys for Amicus Curiae

*'Indeed, this basic recognition that a party should not “have it

both ways”-- “public” for governmental benefits and “private” for resisting

burdens -- largely answers Petitioners’ insistence that it is perverse to

exempt a vehemently anti-gay group from the prohibition on sexual

orientation discrimination while“punishing” BSA (with a nondiscrimination

obligation) for its relative circumspection. As this case well illustrates, the

less loudly an organization declares its exclusionary character, the more

likely that it will be treated as “public” in ways. that redound to its benefit

There can be little doubt, for example, that a group with the avowed

purpose of promoting anti-gay hostility would be less likely to be welcomed

into New Jersey’s schools, fire departments, and other governmental entities

30