Another argument that CLS will advance in support its claim that Hastings Law School should be compelled to recognize it as an official student organization is its contention that the law school is interfering with its rights as an "expressive association." Here is a history of that doctrine, and a summary of two of the most relevant cases.
Much of constitutional law grew out of the civil rights movement – more specifically, in reaction to the attempt of several southern states to quash the movement. For example, the first appearance of the "state action" doctrine – the idea that private organizations might have engaged in "state action," and that its conduct was therefore subject to the requirements of the Constitution – came in the 1944 case of Smith v. Allright, because the Texas Democratic Party had excluded blacks from membership. The "public forum" cases owe much to cases like Edwards v. South Carolina (1963), holding that civil rights marchers could not be arrested for peacefully protesting on the grounds of the statehouse. The "actual malice" test under the First Amendment originated in the 1964 case of New York Times v. Sullivan, when southern officeholders, with assistance of the state courts, sought to silence northern newspapers from covering the civil rights movement through a series of libel actions. And modern Equal Protection doctrine stems from the case of Brown v. Board of Education (1954).
So, too, with the right of expressive association. In the 1950s and early 60s southern states sought to silence and suppress the N.A.A.C.P., which had undertaken Brown and other successful civil rights litigation. The State of Alabama ordered the organization to disclose its membership lists, which would have undoubtedly subjected its members to harrasment and violence. In the case of N.A.A.C.P. v. Alabama (1964), the Supreme Court ruled that the group did not have to disclose to the state who its members were – that the organization has a right to "political association" - a right which is derived from the First Amendment.
In subsequent years the right of association has taken other forms - "intimate association," the right to enter into intimate and personal relationships, and "expressive association," the right to band together with other persons for the purpose of expressing certain values or advocating a point of view. We deal here with the right of expressive association. And in an ironic twist, the First Amendment right of expressive association has grown out of the enforcement of civil rights acts against private organizations.
One of the ways in which the right of expressive association may be affected is when the state or federal government adopts non-discrimination laws which prohibit private entities from discriminating. If the private organization is a business or a landlord the courts have no difficulty in ruling that the private party must obey the civil rights law. Private businesses do not have a constitutional right to engage in employment discrimination or treat customers differently because of their race, and individual homeowners do not have a constitutional right to refuse to sell their home to someone an account of the buyer's religion.
But the question becomes much closer when non-discrimination laws attempt to prohibit private fraternal or social organizations from discriminating in their membership policies, particularly in circumstances where the organization was formed to exemplify certain values or to express a particular point of view. In those circumstances the First Amendment comes into play, and the courts must determine whether or not the interest of the government in preventing acts of discrimination is sufficiently strong to outweigh the interest of the group in being permitted to express itself in word or by deed.
Two cases serve to demonstrate the reach of the doctrine. In Roberts v. Jaycees (1984), the State of Minnesota enforced its Human Rights Act – a non-discrimination law – against the Jaycees, a civic organization that did not admit women to membership. The Jaycees were unable to articulate any particular reason why they chose not to admit women. The organization was not pursuing a gender-based agenda, and in fact women were often present at meetings and participated in many activities of the group. Under these circumstances the Supreme Court found that the state was not interfering with the ability of the Jaycees to express itself, and the Court upheld the appliacation of the non-discrimination law to the Jaycees.
In contrast, in the case of Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the private organization had the right, under the Constitution, to discriminate in its hiring policy, because the organization stood primarily for certain values. The Boy Scouts of America revoked the membership of James Dale, an Assistant Scoutmaster who was both gay and an advocate for gay rights. Dale challenged this action as a violation of New Jersey's public accommodations law, which prohibits discrimation on the basis of several factors, including sexual orientation. The Boy Scouts contended that the state court's decision violated its First Amendment right to expressive association – that among the values that it sought to inculcate in young men was heterosexuality. The Supreme Court found that if the Scouts had been required to retain Mr. Dale as a member, it would substantially interfere with the message that the organization was attempting to instill in young people. The New Jersey non-discrimination law, as applied to the Boy Scouts, violated the organization's right to expressive association.
The CLS will argue that Hastings Law School is trampling on the organization's right to freedom of expressive association by requiring it to admit persons who do not adhere to its religious principles, including sexually active gays and lesbians. The principal difficulty with this argument is that Hastings Law School does not stand in the position that the State of Minnesota or the State of New Jersey did in Roberts and Dale – Hastings Law School does not, and cannot, make it illegal for CLS to discriminate on the basis of religion or sexual orientation. Nor has the law school denied CLS the use its bulletin boards, meeting rooms, or audio-visual equipment. Instead, the law school has refused to endorse the organization's message by allowing CLS to use the Hastings name and logo, and it has refused to provide CLS with funding; the Supreme Court may find that these actions are not the equivalent of a state government making a discriminatory membership policy illegal.
In tomorrow's post I will discuss the student organization's Free Exercise claim against the law school.
Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.
