Lots of the comments to Jennifer’s posts worried that managing information meant (a) lying or (b) burdening individuals’ rights of association.
But here’s an informational proposal for dealing with the Boy Scouts’ discrimination that promotes both honesty and informed association.
The Supreme Court in 2000 struck down the application of New Jersey’s civil rights statute as applied to the Boy Scouts. If a private organization wants to discriminate against gays, the Court found they have a constitutional right to do so.
Jennifer and I in the book and in an article at AlterNet argue that New Jersey might pass a new statute that mandates a private conversation between organizations that wish to retain the right to discriminate and their potential members. The organization would have to privately disclose to potential members that it discriminates AND members would have to privately sign an acknowledgement (which would be kept on file by the organization for the possibility of in camera court review) that they wish to associate with an organization that retains the right to discriminate.
Lots of people worry that public disclosure would chill associational rights. I might be deterred from joining an unpopular group if the public get to know about it and harass me.
But requiring a private conversation of this kind facilitates freedom of association. The right to association is also the right of people not to (unwittingly) associate with organizations that have policies that they view to be repugnant.
Or to put it another way, our contractual silences always have some default meaning. Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation. There is no constitutional reason why the New Jersey legislature can’t flip this default. They could ordain that private organizations that fail to privately disclose (and obtain acknowledgements about) their policies that are in derogation of general civil rights restrictions will be deemed to accept those restrictions.
Ian Ayres
would gay and lesbian groups need to implement this?
Jewish groups?
Black groups?
do they want to?
r they nutz?
Ian and Jennifer: Please respond to comments in comments. Otherwise your points and info will be lost to those coming later to the archived original post.
Yes. It would apply to any group that discriminates on a basis that is prohibited by a law of general application. If the group and its members believe that excluding members on a particular basis is justified, then they should be willing to sign. If a woman’s only group felt it was justifiable to exclude male members, they could as long as they made clear to potential members what kind of group they were joining. Our proposal in a sense is half mandated disclosure and half making sure that the disclosure was heard by its intended audiance.
Many stories have hit the news recently about companies who fail to protect information about their members. Who would assume the burden of protecting the privacy of these disclosure forms? They’d be awfully tempting targets, especially around election seasons.
Indeed, you have a right not to unwittingly associate with entities you find repugnant. You may investigate them as closely as you wish. But now you wish to lay a burden on all members of all organizations, requiring them to speak in certain ways.
The harm that would eventually result from your well-meaning effort outweighs any short-term social benefits it might have.
“any group that discriminates on a basis that is prohibited by a law of general application”
are we talking de jure or de facto here?
also, your proposed law could incentivize discrimination suits of types that have not been heretofore typical. Eg, crypto-racists against the NAACP, crypto-Nazi’s against your local JCC. I mean, the more distasteful the mandatory paperwork, the more it becomes something that motivates strategic behavior. I think you may be unintending some likely and harmful consequences here.
I’m not a law professor, but I simply don’t see any way how this law is constitutional. Let’s see, we have an express 1st amendment right that is being regulated, so strict scrutiny is invoked. Even accepting the state interest as “compelling” (which it is not), can this be a narrowly tailored solution?
No. The sole purpose of this law is its chilling effect. Groups that “discriminate” don’t have to have this conversation and documentation; those that do, do. In effect (or in fact, why not?), the State is requiring the organization to inform the prospective member that 1) it is against the public policy of the State of NJ to discriminate based on sexual orientation, 2) this group so discriminates, and 3) this group is required by law to tell you this before you join. (For purposes, I might add, that the document “would be kept on file by the organization for the possibility of in camera court review”!). If this doesn’t chill one’s express right to associate (while, happily for the authors, drying up new membership), I can’t imagine what would.
But why stop there? If the 1st amendment right of association doesn’t slow this down, neither would the free exercise clause. Let’s go after the Real Enemy. A law that would require disclosure, by sign or statement, before each mass at a Catholic Church, that 1) it is against the public policy of the State of NJ to discriminate based on sexual orientation, 2) this church believes homosexual conduct to be sinful, and 3) this church is required by law to tell you this before you come in today (after all, there might be visitors) would be no more unconstitutional than that proposed.
And really, is there any lack of publicity about the Boy Scouts’ (or Catholic Church’s) position on this issue? And is such publicity in the future not available to whomever wants to raise it? Of course not.
Again, I’m no law professor. Maybe I just don’t get it. But it appears to me that there is no constititional right that cannot be trampled if it is in the way of the Cause. All without trying to convince the populace of its rightness.
From the alternet article:
“I, the undersigned, acknowledge that the Boy Scouts of America (BSA) retains the right to discriminate on the basis of sexual orientation.“
Why would we legitimize the act of discrimination in regards to sexual orientation as a “right”?
I’m assuming you believe the cost of legitimizing harmful idiocy is worth it because there is the belief that…
“For others, the policy against gays would be old news, but seeing it in print over their own signature would create such discomfort that they’d find other, more inclusive activities for their children (such as the YMCA or Campfire Boys and Girls).“
…occurring is beneficial. Would it be? What about the children remaining in Boy Scouts of America who are indirectly and unwittingly ostracized from their current (or potential) peers by their guardian’s ignorance? What would be the effects on children who lack interaction with other children who come from families who see that such discrimination is not just?
I don’t know the long-term answers, but legitimizing abhorrent behavior as a “right” in an attempt to socially mold what you think should be, may not be the most straightforward approach. I may be wrong, but something tells me such an approach may not be a part of the puzzle.
And:
“We agree with the Supreme Court’s opinion in Dale v. Boy Scouts of America that the freedom of association protects the right of individuals to form discriminatory organizations. … The Court effectively held that the constitutional right of expressive association trumped a state statutory right to be free from discrimination.“
Yes. However, I don’t agree that (in this case) the “admission standards” of a Boy Scout member/volunteer has anything to do with the sexual orientation of the individual. I have not read the case in detail (yet don’t feel I need to in order to know that sexual orientation should have nothing whatsoever to do with scouting) but am curious as to how they got away with such an argument. That is, they managed to convince those in charge that sexual orientation is a legitimate “standard of admission” with regards to scouting? Really?
What am I missing?
The dubious term that has me perplexed is this “expressive” association. Hmm, why would the Boys Scouts of America be concerned with sexual expression? I don’t see this connection with sexual expression and “admission standards”. I agree that if you can logically connect the supposed “expression” in question with “admission standards” then yes, but what sort of insanity linked these completely unrelated notions together? I thought the Boy Scouts of America did things like survival drills, interacting with and learning about nature, and play and sing and all that wonderful stuff we can do with children…
What were those who made this ruling thinking? What does, in this case, the sexual expression of any individual who joins the BSA have to do with the BSAs purpose and activities??
I supported the previous posts, but today you lost me at this point:
“…members would have to privately sign an acknowledgement (which would be kept on file by the organization for the possibility of in camera court review)…”
That just makes me queasy. The state shouldn’t make a person sign a form to join an organization, or make the organization keep these forms, or make it turn them over to a court. That’s an unwarranted intrusion into people’s right to freely and privately associate. Have you forgotten that the membership records kept by gay organizations during the Weimar era were seized by the Nazis when they came to power, and used to help round up homosexuals?
Peter,
Paraphrasing, the decision held that the Scouts used the follow my good example approach of its leaders to express its views and teach children those views and that since it opposed homosexual conduct it would not be possible for a homosexual to lead by good example. Hence, even membership choices became expressive speaking and it was permissible to refuse to accept as a scout leader a homosexual.
I occurs to me that the approach to legitimizing discrimination by forcing disclosure is ‘not quite right’. Were it mine to do, in New Jersey, I’d enact a 500% tax to any donation to any organization that discriminates based on … just about anything.
In other words, make it as close to impossible as can be for the boy scouts to raise money.
[disclosure: I was sent home by the scoutmaster (i960?) with a note to my mother asking that I never come back. He said I was a ‘bad influence’ for asking ‘Why’ to everything. My mother was so proud of the letter she had it framed and hung it on the wall until I graduated college.]
Just to clarify one point in my earlier post (after I went to the books). Freedom of association is not an express 1st amendment right, as I posited, but has been held by the Supr. Ct. to be one of the few “fundamental” rights that invokes strict scrutiny. So the analysis remains the same.
James Day said:
“Paraphrasing, the decision held that the Scouts used the follow my good example approach of its leaders to express its views and teach children those views and that since it opposed homosexual conduct it would not be possible for a homosexual to lead by good example.“
I have yet to locate anywhere on the BSA site that the organization “opposes homosexual conduct”. And of course, even if it did, I am still perplexed as to why sexual identity has anything whatsoever to do with being able to teach children the skills the BSA offers through its program.
From the BSA website…
Scout Oath:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
Scout Law – A Scout is:
Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean, Reverent
——————————————————
Although statements like – “To do my duty to God and my country
and to obey the Scout Law” or “A Scout is obedient” or “A Scout is reverent” are enough for me to keep my own child miles away from such propaganda, I still don’t see where sexual identity fits into any of this.
Rex ‘a pseudonym’ Karz said:
“disclosure: I was sent home by the scoutmaster (i960?) with a note to my mother asking that I never come back. He said I was a ‘bad influence’ for asking ‘Why’ to everything.“
Yes, well any organization that mandates duty to “God and Country” isn’t going to appreciate the child who questions. Children who question are a danger to such organizations. They are a benefit to society as a whole IMHO, but a danger to the groups that worship and propagate conformity.
Update:
I found it here…
“We believe an avowed homosexual is not a role model for the values espoused in the Scout Oath and Law“
But now I’m REALLY confused. Under the “Position Statements (In Support of Diversity)” at the BSA site, it says…
?
Your comments are really helpful. Thanks. Here are a few reactions:
“The sole purpose of this law is its chilling effect. ” No. The central purpose is to promote informed association which is the very basis of the Dale decision.
“Groups that “discriminate” don’t have to have this conversation and documentation; those that do, do.”
Many of the comments don’t engage the logical necessity of the law choosing a default. Either silence on the topic means that the organization retains the right to discriminate or they don’t. Either default burdens associational rights in the sense that it forces orgs that want the opposite treatment to speak. The current (discrim allowed) default burdens the associational rights of groups that don’t want to discrim because they are forced to speak to get what they want. So at first cut the Constitution doesn’t have a way to prefer one vs. the other. But here are two arguments for switching to the non-discrim default. 1. Most orgs prefer non. discrim default so as an empirical matter we are forcing less speech; and 2. The non-discrim default is consonant with a state law of general application — so that we are only forcing orgs that want rights in derrogation of general state policy to speak.
“Have you forgotten that the membership records kept by gay organizations during the Weimar era were seized by the Nazis when they came to power, and used to help round up homosexuals?”
This is an important concern. And maybe we should back away from even in camera review. Readers of this blog know that information tends to find ways to be set free. So imagine two different ways to induce the private conversation between the boy scouts and its potential members:
1. If sued an organization would have a duty to prove by a preponderance of the evidence that it had a general policy of disclosing its policy to prospective members and receiving their written acknowledgements. They would not have to retain the acknolwedgements. The organization might be able to establish the general policy through testimony and it might be rebutted by counter testimony.
2. The state might create an action for “fraudulent inducement to associate.” This might be a private right of action for people who were induced to join an organization without ever being told that it discriminated. Besides the victims of discrimination, there are people like myself who feel injured by learning that we unwittingly associated with a discriminatory organization.
Finally, “A law that would require disclosure, by sign or statement, before each mass at a Catholic Church . . .”
Our proposed statute like the original NJ discrim statute would not apply to churches. But it is an interesting and difficult constitutional question whether freedom of religion protection would stop this type of legislation if the legislature choose to apply it to religions as well. I think there is at least a colorable argument that religions can fraudulently induce membership as well and might be constitutionally held accountable if they do (and a legislatures chooses to hold them accountable). Didn’t Hakeem Olajuwon unwittingly give to a mosque that was supporting terror? A central idea here is that we have constitutional pricniples on both sides of the question. But in my next post you’ll see that I have a non statutory suggestion that individual churches or parishoners themselves might take up a moral duty to disclose and have this warning conversation.
Still have my question: Does the “discrimination” (sufficient to trigger your paperwork) include de facto discrimination?
What I mean by “de facto” is discrimination that is proven by demographics of the group, as opposed to policies/actions/omissions of the group.
Hidden Agenda Alert:
If it does, then this seems probematic for a lot of groups both liberal and conservative and radical and reactionary alike.
If it doesn’t, then it looks like a big loophole in your plan.
Disclaimer: I am a Scout Commissioner.
A simpler, more democratic, and more up-front solution to your problem with BSA policy is the following:
Join the BSA and get a vote on what the policy should be. All you have to do is get about seven adults together and create a scout unit, a Cub Pack for 6-10 y.o.s, a Scout Troop for 11-17 y.o.s, or a Venture Crew for 14-20 y.o.s (co-ed). Now you have 1 vote.
With about 20 votes you can “take over” or lead most districts in this country. With about 80 votes you could “take over” or lead most local councils in this country. With about 12,000 votes you could “take over” the whole BSA national council.
Having attended many district and council meetings, I should inform you that there are already about 10 votes already in place in many districts, and 40 in many councils. So, half your work is already done.
If you succeed, some old-time Scouters will quit; and some who had quit will come back. Some Churches will drop the program; and some churches and many schools will bring back the units that had lapsed years ago.
Some see your positiona as the death of Scouting; but I think the strengths of the Scout Movement will overcome whatever changes a fair and active interaction with the surround culture bring.
Again, let’s be very clear that you’re talking about the Boy Scouts of America. The BSA is quite separate from, and its policies do not reflect those of, Scouting groups elsewhere.
I appreciate the candor of Prof. Ayres’ response. And I also appreciate the thoughtful tone of this discussion, on such an explosive topic.
But I hope the readers take note of Prof. Ayres’ justification of state constraints on private organizations. There are phrases in his response that are chilling : “we are only forcing orgs that want rights in derrogation of general state policy to speak”, “Most orgs prefer non. discrim default so as an empirical matter we are forcing less speech” (i.e., code for forcing the agenda to avoid the regulation), and the topper of “it is an interesting and difficult constitutional question whether freedom of religion protection would stop this type of legislation if the legislature choose to apply it to religions as well” (referring to my hypothetical of posting a sign at the door of a Catholic Church.
Forcing private organizations to speak? Forcing less speech as a reward for adopting the party line? An interesting and difficult question whether freedom of religion protection applies?
This is serious business, readers.
But what is more serious from these authors is, again, their approach that these encroachments on fundamental civil liberties are being pursued not by persuasion of the public of the rightness of the cause, but by stealth tactics (mobilizing heterosexual support, changing the vocabulary to include “heterosexual privileges”) that do not squarely present the underlying issue.
Compare and contrast this with the racial civil rights movement. It succeeded because of people like Dr. King that rightly convinced the populace that racial discrimination was contrary to human dignity (and contrary to God’s laws), both of which were true. Other tactics were tried and used, to be sure, but it was the moral persuasion that changed the world.
Over ‘n out. Thanks to the blog and the comments for helping me think through my positions; I hope I helped others do the same.
Peter Rock says:
In February 2002 (note: 18 months after the Supreme Court’s decision in Dale) the BSA passed a resolution that included this provision:
“the national officers further agree that homosexual conduct is inconsistent with the traditional values espoused in the Scout Oath and Law and that an avowed homosexual cannot serve as a role model for the values of the Oath and Law…”
The resolution makes clear that local chapters will not be permitted to dissent from this position, as some have sought to do in the wake of Dale.
So now the policy is crystal clear, as Rodander points out:
However, I disagree with Rodander’s next point, that in the future publicity about discriminatory policies will always be possible.
Yes, of course the BSA is quite clear about its anti-gay policy now, after litigating the issue all the way to the U.S. Supreme Court. But the policy was not at all clear earlier on, when thousands of families devoted time, talent and treasure to an organization they only later discovered to be anti-gay. But as Kenji Yoshino cogently argues, this lack of clarity did not stop the Supreme Court from permitted the BSA to establish the existence of its policy in a fairly tenuous way, by inferring an unstated rule against homosexual leaders from other stated values such as cleanliness or “morally straight” living. Had the organization articulated its policy earlier on, it would not only have lost members (as has happened in the wake of Dale), it would also have faced political consquences it was able to avoid earlier by keeping mum. If the BSA got away with this, what’s now to keep other organizations from developing such after-the-fact discriminatory “messages” that take some of their members by surprise? The Informed Association Statute proposal is one idea that might prevent this in the future.
The statute might be structured to just capture what lawyers call “disparate treatment” — which means decisionmaking which is contingent on a particular characteristic such a sexual orientation — or it could be structured to include decisionmaking that has unjustified “disparate impacts” on people with a particular characteristic. ENDA and the fair employment mark are expressly just set up to cover disparate treatment (and hence would not cover what I think you mean by de facto discrimination). State statutes including New Jersey’s have traditionally been interpretted to include disparate impact causes of action. You are right that disparate treatment leaves much uncovered. But the perfect cannot be the enemy of the good.
It seems to me that in reality there is a third option, which is the real default taken by most real organizations — not having a policy at all. The real intent of this legislation is to exclude the middle — to remove that possiblity entirely, forcing the issue. Furthermore, it forces organizations to either proactively and preemptively assert their rights or apparently forfit them forever, and it’s almost impossible to not construe that as having a chilling effect. There also doesn’t seem to be any way for an organization to change its policy should it desire to.
Professor Ayres:
As much as I’m in favor of ending sexual-orientation discrimination, this sort of idea seems to be one that could be abused to penalize people who want to form organizations that take positions or actions that meet with official disapproval. For example, an Islamist organization might be required to have a disclosure form including the phrase “I, the undersigned, acknowledge that Al-Organizationa espouses the principle of jihad in cases of perceived oppression of Arabic people.” Someone buying books at a marxist bookstore might be required to sign a disclosure form saying “I, the undersigned, acknowledge that the Red Fist Bookstore retains the right to provide financial and other support to communist movements in central America.” etc. etc.
I think there’s a serious chill problem per NAACP v. Alabama. And I think that idea has to violate the First Amendment.
Honestly, I think the argument made in the alternet article is kind of disingenuous. You argue that this disclosure prevents “organizational fraud.” However, this implies that there’s actual deception going on. Who doesn’t know that the boy scouts discriminate on the basis of sexual orientation?
Anyone who joins an organization that discriminates who doesn’t know about it will soon learn about it if the organization actually engages in discrimination and the victim reveals it. Then the people who are offended can resign their membership.
This looks like an attempt to deter people from joining these organizations thinly-disguised as an “anti-fraud” measure.
The right of free association means that you are free to choose to associate with those you want to associate with. This is what discrimination is. You discriminate between those you want to associate with and those you do not. For a right of free association to exist, the default MUST be that the organization may discriminate on who it wants as a member.
What the government can do is to avoid funding discriminatory organizations. The university that I attended had that rule: discriminatory organizations (which included the typical college fraternity and sorority, among others) were those that were not open to any student who wanted to join. They were not funded by the student activity fee. Non-discriminatory organizations that were open to all students were funded. Funding included the right to use university property for organization activities as well. This seems like sufficient discouragement from discrimination to me, while still allowing freedom of association.
Ayres’ arguments are nutty on their face, because even if his hypo is invidious discrimination, it is invidious discrimination by private individuals, not invidious discrimination by THE STATE. The argument he is making is like saying that a cat burglar abridged my 4th Amendment rights by breaking and entering my home and fleeing with my television. The problem with the proposition is that while stealing my television is an unlawful seizure in a place where I have a reasonable expectation of privacy, it is not an unlawful seizure by THE GOVERNMENT, so it does not implicate the 4th Amendment. The same argument can be made with regard to the 14th Amendment. You still need state action. We do not live in a totalitarian state where micromanaging the private affairs of citizens is permitted; in fact that is exactly what the Bill of Rights was drafted to prevent and precisely why the Bill of Rights is applicable to the States.
“Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation.”
But since discriminating on the basis of sexual orientation is not unconstitutional for private organizations, there is no legitimate source of power (i.e., rational-basis) upon which the NJ legislature could premise its legislation. Indeed, this seems like the legislature targeting anti-gay associations of people for what is effectively a fine (Aryes admits that this would impose a cost on anti-gay organizations: that’s the point). Since opposition to associating with gays could be premised on religious or political beliefs, this sounds like the legislature targeting an unregistered politcal party or an unregistered church for a fine or tax because the legislature doesn’t like it’s viewpoint. That is obviously unconstitutional. Under Romer v. Evans, it would be legislative animus, and it would fail rational-basis scrutiny. Animus (against anti-gay people) is not a rational-basis, and unfairly targeting people you hate or dislike with the police powers of the state is not a legitimate interest. Ayres’ argument is self-refuting.
We should clarify one important point that might calm some fears (even as it narrows our proposal to such a small set of organizations that you might think, “big deal”). The NJ statute invoked in Dale against the BSA’s discrimination applied not to all private organizations, but to “public accommodations,” which the statute defined to exclude “any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution.” When we talk about the idea of discrimination warnings, Ian and I often fail to make clear this important limiting principle, and you might (reasonably) understand the proposal to apply to all private organizations. That wasn’t the original concept. The Boy Scouts falls into that odd category of organizations that is sufficiently public and seemingly “open to all” that it qualifies as a “public accommodation,” but independent enough that joining it is “expressive.” When it comes to government regulation of private activities and associations, we share the concerns many of you have raised, but the idea of an “informed association statute” has always been nestled within (and has thus been limited by) the NJ public accommodation statute.
For organizations that are distinctly private and thus beyond the reach of a public accommodations statute, the “triple A” approach Ian outlined in his post from yesterday — Acknowledge, Apologize, and Act — is more appropriate as it places responsibility on individual members to monitor their clubs and associations.
Thanks, Ms. Brown, on the clarification. But your explanation would have been more useful if it had defined what a public accomodation is, rather than by clarifying which private organizations are not public accomodations. I’ve not gone back to read the Dale decision on this, I admit.
OTOH, the “public accomodation” seems to me to be a rather convenient definition by way of which the state can (try to) regulate a purely private organization (while quieting complaints from those concerned about such regulation in general). One wonders whether a “public accomodation” is merely a private organization that has become sufficiently successful and popular?
Which brings me back to the example of a church. A pretty public thing for a private organization. A church has a big building, lots of members, posted and publicized times of events, open to everyone, nonmembers welcomed, no dues, and no one checking membership cards at the door. Many churches have public events (bazaars, etc.) to which the general public is invited, and many run schools that non-adherents to the faith may attend. No gender restriction. No age restriction.
While Boy Scout meetings are open to all that want to consider joining, one cannot continually visit without joining. And one cannot join and participate in the meetings, campouts, etc. without paying dues, taking and repeating the Oath (incl. the “God” and “morally straight” parts), buying and wearing a uniform, becoming a working member of a patrol or other small group and accepting responsibilities, etc. Not to mention the gender restriction on who can actually join as a Scout.
So the “public accomodation” again just seems to be a convenient construct to attack the “discrimination”. I don’t feel any better because of your explanation. Instead, it just seems like another opaque stealth tactic.
Jennifer Brown said:
“If the BSA got away with this, what’s now to keep other organizations from developing such after-the-fact discriminatory “messages” that take some of their members by surprise? The Informed Association Statute proposal is one idea that might prevent this in the future.“
I really don’t know the answer. But I’m simply not convinced that legitimizing descrimination through something like the IAS is the best approach. I really need to investigate and reflect more. Thanks so much for your guest blog this week. I have learned a lot and will continue to piece together more as information comes my way.
“we are only forcing orgs that want rights in derrogation of general state policy to speak”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”