On March 31, New Jersey Jewish News reported on a pending Supreme Court case involving a Christian campus group seeking to overturn a requirement that student groups that receive activities fees at California’s public universities practice non-discrimination in terms of racial, religious, and gender preference. The issue, according to the article, is “Can a campus religious group deny membership to students who don’t share its beliefs?”
The article described a split among Jewish groups over the issue of separation of church and state.
Central to the issue is the use of public funds, i.e. taxes, to support alleged discrimination by the recipients of the funds.
Because of the religious nature of the plaintiff in the case, the First Amendment’s protection of freedom of religion is necessarily implicated. However, nowhere in the article was the First Amendment’s freedom of assembly discussed.
Freedom of assembly is sometimes used interchangeably with the freedom of association. It is the right of individuals to come together and collectively express, promote, pursue, and defend common interests. Freedom of association is recognized as a human right, a political freedom, and a civil liberty.
Despite being enshrined in the Constitution and in international human rights documents, in the United States the freedom of association has been forced to yield to claims of discrimination or where a government-sponsored privilege is involved.
As to the former, it is not unusual for an association by its nature to be discriminatory. A person cannot get into Phi Beta Kappa or Mensa unless the person meets the entry requirements. I cannot be a member of a property owners association unless I own property in the area covered by the association.
Some organizations have easy membership requirements — just pay your dues (Groucho Marx’s famous quip, “I don’t want to belong to any club that will accept people like me as a member,” comes to mind). Others are very selective.
To be selective, by definition, means to be discriminating.
Of course, there are laws forbidding discrimination based on gender, race, religion, national origin, and sexual preference, which takes us to what happens when a government-sponsored privilege is involved, say a liquor license or a parade permit.
The first case that I recall that used a liquor license to end a form of discrimination involved McSorley’s Bar in New York City. McSorley’s only admitted men and a fight bell would ring when women tried to enter. In 1969, at the beginning of the feminist movement, women complained and McSorley’s was told either allow women in or lose its liquor license. Today, women are welcomed at McSorley’s.
A parade permit was at issue in the St. Patrick’s Day parades in both New York and Boston. Gays of Irish descent wanted to march as contingents in these parades. They took the position that if they were not allowed to march, the parade license of the sponsors should be revoked.
In New York, the sponsors defended the exclusion on the grounds that the parade was associated with the Catholic Church and homosexuality was against Church teachings. Therefore, to let gays march in the parade as an identifiable contingent would be antithetical to these teachings. The parade was held to be a private event, despite its use of publicly funded resources, and the sponsors won. Today, gays are still not allowed to march as a recognizable contingent.
The Boston parade case went to the Supreme Court, which treated it as a freedom of speech/expression case. Massachusetts’ highest court sided with the petitioners on the grounds that to keep them out of the parade violated the state’s accommodations law. The Supreme Court reversed this decision.
The findings at the very end of the Court’s opinion are instructive to what might be in store for the California campus case:
Our holding today rests not on any particular view about the [organizers’] message but on the Nation’s commitment to protect freedom of speech. Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others.
While these cases turn on freedom of speech, they also involve the freedom of association, as recognized by the Supreme Court in the Boston case:
[T]he First Amendment’s protection extends beyond the right to speak. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.”
The coercive powers of the government run deep. In the McSorley’s and private club cases in New York, a government-issued liquor license was used as a bludgeon. Consider what could happen to educational, religious, and charitable institutions if the 501(c)(3) tax exemption was similarly used to enforce the federal government’s view of acceptable speech or association.
Does a group of persons have the right to freely associate with people of similar background or similar beliefs without being forced by the government to accept people whose backgrounds and beliefs would be disruptive to the welfare of the group? We will soon find out.