The public College of Staten Island refuses to officially recognize groups that discriminate based on sex; this refusal denies the groups various benefits. Last year, a federal district court held that the College’s policy violated a fraternity’s right to intimate association. Today, the Second Circuit reversed the district court’s decision. (Thanks to How Appealing.)
I have argued the district court decision was indeed a mistake: The University is choosing not to fund certain exercises of a constitutional right to intimate association, and the government is generally perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that’s in some ways an alternative to that exercise of a constitutional right). Consider some examples (“need not” below means “has no federal constitutional obligation to”):
| Right to abortion | New York may not ban abortions, | but it need not pay for them with state funds, or allow them to be performed at state-run hospitals | even if it chooses to pay for childbirth. |
| Right to free speech | New York may not ban advocacy of a candidate or a legislative proposal, | but it need not subsidize it through the charitable tax exemption | even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption. |
| Right not to marry | New York may not require people to marry, | but it need not give unmarried couples or platonic roommates special dorm housing, | even if it subsidizes married couples by offering such housing. |
| Right to privately educate one’s children | New York may not ban private education, | but it need not pay for private education, | even if it pays billions for public education. |
For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.
I’m not sure about some of the Second Circuit’s analysis in today’s decision, but the general thrust seems correct: “[The college’s] refusal to subsidize the Fraternity’s activities does not constitute a substantial imposition on the group’s associational freedom. See[, e.g.,] Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546 (1983) (‘We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.’)” Sounds right to me.