Archive | Freedom of Association

Nigeria Outlaws Membership in Gay Rights Groups

Reuters reports; the law apparently provides that,

Any person who registers, operates or participates in gay clubs, societies and organizations or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The law also “contains penalties of up to 14 years in prison and bans gay marriage,” though “[u]nder existing Nigerian federal law, sodomy is [already] punishable by jail.” For a similar recent incident, see the report on this Uganda bill, which was passed by parliament and is now before the president for signature. Appalling.

Thanks to Robert Dittmer for the pointer. [...]

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Goldwater Institute Tells Senator Durbin to “Pound Sand”

Senator Dick Durbin (D-IL) has sent letters to corporate and non-profit donors and supporters of the American Legislative Exchange Council (ALEC) demanding to know whether these organizations continue to support ALEC and whether they support “Stand Your Ground” laws. ALEC is right-of-center non-profit organization of state legislators that, among other things, develops and promotes model legislation on various issues. One model statute ALEC promoted was a Stand Your Ground law much like the one on the books in Florida. (Indeed, ALEC claims to have based its model statute on the Florida law.) Senator Durbin said he plans to hold a hearing on such laws later this year, and wants to identify supporters and funders of ALEC in the hearing record. Such disclosure is not required by law and, as the Chicago Tribune editorialized, this appears to be an effort to intimidate ALEC supporters: “while the letter acknowledges that recipients have a right to participate in policy debates, Durbin’s intent is transparent: Renounce ALEC, and quit donating money, or I’ll shame you but good.”

The Arizona-based Goldwater Institute is one of the groups that received Senator Durbin’s letter. In response, they told the Senator to “pound sand.” In a public letter, Institute President Darcy Olsen called Durbin’s campaign an “outrage.” The letter reads in part:

especially in the wake of IRS intimidation and harassment of conservative organizations, your inquisition is an outrage.

We refuse to answer whether we are or ever have been a supporter of ALEC or its model legislation. We refuse to answer not because we disavow ALEC—far from it. We refuse to answer because as free Americans, that is our right.

Your attempt to silence your fellow Americans through threats and intimidation because they don’t share identical political beliefs is disgraceful and not worthy

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Proposed California Bill Would Strip Youth Groups’ Sales Tax Exemption If They Discriminate Based on Sexual Orientation or Religious Affiliation

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer. [...]

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Private Religious Colleges and Free Speech

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The [...]

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HUD on Fair Housing and Discriminatory Roommate Advertising

When I blogged about the case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one’s choice of roommates is legal, it would also be legal to advertise a discriminatory preference.  I suggested that this wasn’t so clear.  Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association.  But here is what HUD’s website has to say:

It is illegal for anyone to

  • Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
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Does the Right to Choose a Roommate Include a Right to Advertise Discriminatory Preferences?

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually [...]

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Freedom to Discriminate in Choice of Roommates

Fair Housing Council v. (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that. [...]

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Lawsuit Claiming University of Iowa College of Law Discriminated Against Republican Teaching Applicant

Ilya blogged about this lawsuit when it was filed, so I thought I’d note that today the Eighth Circuit allowed the lawsuit to go forward, “revers[ing] the district court’s grant of summary judgment based on qualified immunity.” Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. “Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment.”

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more. [...]

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More on the Gay Athletic Group’s First Amendment Right to Limit the Number of Straight Players on a Team

As I noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs’ motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series (“GSWS”) were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination (“WLAD”). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA’s decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648-59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.

Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA’s First Amendment rights under the Dale test could be conclusively

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The Court’s Upcoming Religious Freedom vs. Antidiscrimination Law Case

Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.

Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there’s a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)

Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can’t be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial [...]

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Ninth Circuit Panel Holds that University Antidiscrimination Policy May Be Applied to Religious Groups, But Only If It’s Applied to Other Groups

The case is Alpha Delta Chi-Delta Chapter v. Reed (9th Cir. Aug. 2); the opinion basically agrees with Justice Stevens’s concurrence in Christian Legal Society v. Martinez, which took the same view. The Christian Legal Society majority held only that a policy that recognized groups must take all comers — with some modest exceptions — is constitutional. But the logic of that opinion does suggest that policies which simply require groups not to discriminate based on race, religion, sex, sexual orientation, and so on would likewise be constitutional, if they are applied evenhandedly to all groups.

The court did note, though, that such a policy may not be applied in a deliberately discriminatory way:

In this case, Plaintiffs also offer evidence that San Diego State has granted official recognition to some religious student groups even though those groups, like Plaintiffs, restrict membership or eligibility to hold office based on religious belief. For example, the Catholic Newman Center’s application for official recognition by San Diego State provides that its officers must be “members, in good standing, with the Catholic Church.” Further, some non-religious but officially recognized groups appear to discriminate on prohibited grounds, in contravention of the policy. For instance, the African Student Drama Association’s constitution limits its leadership positions to students from Africa.

[T]he evidence that some student groups have been granted an exemption from the nondiscrimination policy raises a triable issue of fact. We note that Plaintiffs’ characterization of the evidence may not be correct. For example, it is possible that these groups were approved inadvertently because of administrative oversight, or that these groups have, despite the language in their applications, agreed to abide by the nondiscrimination policy. But as it stands now, the record does not adequately explain why some official student groups at San Diego State

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New Ordinances from Gould, Arkansas

Relevant excerpts from this ordinance and this one:

The Mayor of the City of Gould shall not call special meetings to discuss City business without two thirds of the City Council’s vote to do so.

The Mayor nor City Council members shall attend or participate in any meetings with any organization in any location without City Council approval by two thirds [vote].

The Gould Citizens Advisory Council by passage of this ordinance is hereby banned from doing business in the City of Gould.

That the said Council is, in effect, causing confusion and discourse [sic] among the citizens of Gould and as a result is contributing to the friction not only between the Mayor and Council but also among the citizens who deserve a cooperative government.

[N]o new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council.

And a quote from a backer of the ordinances, Councilwoman Sonja Farley:

“In everything, you have somebody in control over it. In everything,” said Council Member Sonja Farley.

Farley says no matter the group, if you discuss the city at all, the meeting must be approved by the city council.

“You couldn’t just come in here and get with four people and decide you want to start an organization,” said Farley. “You will go through your city council with documentation, the right paperwork and get an approval.”

Wow. I mean, wow. Thanks to Josh Blackman for the pointer; see also this story, with a quote from Prof. (and Dean) John DiPippa. Did I say, “wow”? [...]

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Gay Athletic Group Has First Amendment Right to Limit the Number of Straight Players on a Team

From Apilado v. North American Gay Amateur Athletic Alliance, 2011 WL 2148816 (W.D. Wash. May 31):

This case arises from the disqualification of a softball team from the 2008 Gay Softball World Series (GSWS). The event was operated by Defendant North American Gay Amateur Athletic Alliance (NAGAAA) and attended by Plaintiffs Steven Apilado, LaRon Charles, and Jon Russ. The Plaintiffs’ team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta league filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team.

Rule 7.05 states that “[a] maximum of two Heterosexual players are permitted on a GSWS roster.” Penalties for violation of this rule include permanent suspension of the heterosexual player, disqualification and forfeiture of the offending team’s games, one year’s suspension of the team’s manager, and a minimum $100 fine imposed against the team’s association. Under Softball Code Section 1.15, Gay means “having a predominant sexual interest in a member or members of the same sex and includes both gay men and lesbians.” Softball Code Section 1.18 defines heterosexual as “having a predominant sexual interest in a member or members of the opposite sex.”

The Softball Code also establishes a mechanism for enforcing rule 7.05: the protest hearing. Rule 8.04 states that a protest can be filed by the manager of the opposing team, an open division director, or an association’s commissioner. Rule 8.06 establishes the procedure for these hearings: a protest committee convenes, the protest committee chairperson begins the proceedings by explaining the procedures, the protesting party explains the basis for the protest and presents any available evidence, the protested party has an opportunity to rebut the argument, the protest committee may interview players, and the protest committee conducts

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Wesleyan University Banning Students from “Participating in Social Activities” Off-Campus on Property “Operated by Private Societies That Are Not Recognized by the University”

Here’s the “[p]olicy addition to take effect August, 2011”, which was specially referenced in a campus-wide e-mail sent by the administration:

Wesleyan students are prohibited from using houses or property owned, leased or operated by private societies that are not recognized by the University. This prohibition includes using such houses or property as residences, taking meals at such houses or property and participating in social activities at such houses or property.

Pretty stunning; sounds like a return to the days when universities were seen as acting “in loco parentis” to students (who were at the time treated as underage, since the age of majority throughout the country was mostly 21). And of course the policy is remarkably broad: Eating dinner at a local Italian-American society, going to a party at a church, going to social/political events put on by political or ideological groups, and so on would all qualify. Yow.

The rule seems to be motivated by criminal activities at a local fraternity: underage drinking, and a reported rape. But the customary, and in my view essentially adequate, way of dealing with the risk of off-campus crime is criminal punishment for the crime, plus possibly school discipline for the accused criminals. (The discipline might even apply to people before they are convicted, or even if they aren’t convicted: A school need not feel bound, for instance, by the criminal law requirements of proof beyond a reasonable doubt, and may conclude that the fact that there’s a 75% chance that a student is a rapist is reason to expel him even if it isn’t enough to imprison him.) A preventative rule of such breadth and intrusiveness is going way too far in trying to deal with the danger of crime, however real.

Wesleyan is a private university, and [...]

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Federal Government Acknowledges Constitutional Limits on Housing Discrimination Law

From the Department of Housing and Urban Development’s Determination of No Reasonable Cause in Fair Housing Center of West Michigan v. [Redacted] (paragraph break added):

[A]n individual complained to Complainant about a rental advertisement posted on a bulletin board at the [Redacted] Church … stat[ing] (in relevant part): “I am looking for a female christian roommate….” …

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing.

However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

I’m happy to see that the Department acknowledged that there were constitutional constraints here, though I’m not sure exactly what it understood the constitutional limits to be. The Fair Housing Act generally allows a person to discriminate based on race, religion, and the like in choice of roommates, at least if the person is the “owner,” see 42 U.S.C. § 3603(b)(2); but it still bars “any notice, statement, or advertisement … that indicates” such a lawful preference.

One could argue that this prohibition, as applied to roommate selection, interferes with First Amendment rights to promote a lawful commercial transaction. One could argue that it unduly burdens the right to intimate association, since it makes it much harder for someone to effectively choose whom to live with (though it doesn’t outright prohibit such selection). And one could argue that it unduly burdens the right to associate for purposes of creating a religious household, though I’m not sure that there is much precedent for recognizing a right defined in that specific way. I [...]

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