It has been awhile since my last posting on this subject in which I promised "tomorrow" to explain how the Free Exercise Clause and the right of expressive association protect religious organizations that are opposed to homosexuality. We got sidetracked when the torture memos were released – for those of you who wish to continue that discussion I added another comment this morning. But "tomorrow" is finally here, and this essay presents a summary of the law as it applies to religious organizations that are opposed to homosexuality.
Religious organizations that are opposed to homosexuality quite naturally do not wish to hire gay or lesbian clergy or perform gay marriages, and under the Constitution the government is prohibited from forcing them to. Such organizations could assert two separate but related rights under the First Amendment – the right of expressive association and the right to Free Exercise of Religion.
The right of "expressive association" protects all organizations that seek to communicate a particular message, whether or not the message is a religious one. Under this right an organization cannot be required to hire people or admit them as members or allow them to participate in the organization's activities if the employment or membership or participation of these people would interfere with the communication of the message it is seeking to convey. The Supreme Court has applied this principle to questions of sexual orientation in two cases. In Hurley v. Irish-American Gay Group of Boston, decided in (1995), the Court ruled on the question of whether St. Patrick's Day parade organizers had to allow a gay rights group to march in the parade. The group organizing the parade – the South Boston Allied War Veterans Council – was a private organization, not a government agency, so the Equal Protection Clause did not apply to it, and if the gay rights group had a legal right to join the parade it would have to be under statutory law, not the Constitution. Under a Massachusetts civil rights law, no "place of public accommodation" is permitted to discriminate on the basis of race, religion, gender, disability, or sexual orientation. The courts ruled that the St. Patrick's Day parade was "a place of public accommodation," so under the operation of that statute the parade could not discriminate against gays and lesbians any more than it could discriminate against blacks or women. The parade organizers could avoid this result only if the law was unconstitutional.
In general, civil rights laws outlawing discrimination on the basis of race, religion, gender, disability, sexual orientation, or other criteria are constitutional. Employers and businesses do not have a constitutional right to refuse to employ or serve people for discriminatory reasons. But private organizations have rights under the First Amendment – one of these rights is the right to free speech – and the Court ruled that the St. Patrick's Day parade was an expressive event and that the organizers of the parade had the right to select the marchers whom they wanted and to invest the event with any meaning that they chose. The Court stated:
This use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.
The implication of the Court's ruling in Hurley means that the parade could also have excluded blacks, women, Protestants, or people in wheelchairs so long as the organizers of the event believed that the inclusion of these people would have detracted from the message that they intended to communicate about their understanding of the Irish heritage.
For similar reasons the Court ruled in Boy Scouts of America v. Dale that the Boy Scouts did not have to employ a gay man as a scoutmaster. New Jersey law prohibited employment discrimination on the basis of sexual orientation, but when the scouting organization learned that Dale was a gay rights activist they fired him. The Boy Scouts maintained that they were an expressive organization because they sought to instill certain values in youths, and that among the values they embraced was opposition to homosexuality. The Court ruled in favor of the Boy Scouts under the principle of expressive association, stating:
a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct.
Similarly, under the right of expressive association, no religious institution that disapproves of homosexuality could be required to hire gay clergy or admit gays or lesbians to membership or to participation in sacraments or other religious activities.
This conclusion is buttressed by the remainder of the First Amendment. In addition to freedom of expression, the First Amendment also protects freedom of religion, and in particular the Free Exercise Clause protects religious organizations from having to alter their religiously-motivated practices to include gays and lesbians on a nondiscriminatory basis. The Free Exercise Clause protects not only religious belief and religious expression - to some extent it also protects religiously motivated conduct. For this reason civil rights laws like the federal Equal Employment Opportunity Act exempt religious institutions from the operation of the law.
These immunities from civil rights laws for expressive or religious purposes do not mean that the government has to encourage or subsidize the discriminatory behavior of all private organizations. For example, in 1971 the Internal Revenue Service issued a ruling stating that educational institutions that discriminate against students on the basis of race were not "charitable institutions" within the meaning the Internal Revenue Code. This rule was extended to religious schools in the case of Bob Jones University v. United States. That case involved a religious university that for religious reasons refused to admit students who advocated interracial marriage and a private religious school that for religious reasons refused to admit black students. The Supreme Court ruled that the school and the university were not constitutionally entitled to tax-emempt status as "charitable organizations" for the following reason:
Charitable exemptions are justified on the basis that the exempt entity confers a public benefit – a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues. … To warrant exemption under 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest. The institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.
In summary, private associations such as fraternal organizations and religious institutions are free to discriminate in a number of ways under the First Amendment, but taxpayers do not have to subsidize this behavior in all circumstances. Could the law deny a tax exemption to the Boy Scouts? I believe so. Under the reasoning of the Bob Jones case the courts might reasonably conclude that the Scouts were not a "charitable organization." Could this principle be extended to a church that refused to hire gay clergy or perform same-sex marriages? I doubt it – it seems to me that this would go the heart of the Free Exercise Clause, even under the greatly weakened standard established in the case of Employment Division v. Smith. But if a church were to establish a school that discriminated on the basis of sexual orientation I am confident that it would be constitutional to deny the school tax-exempt status. Similarly, if a church sought public funding to perform social services such as a soup kitchen or day care it would be constitutional to require the church to provide services on non-discriminatory basis. This is yet another example of the difference between laws that prohibit private behavior and laws that subsidize private behavior. The government has far more power under the Constitution to encourage private conduct that it approves of than it has to regulate private conduct that it disapproves of.
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