Special Topics In LawEssay Preview: Special Topics In LawReport this essayCyle ParkerSpecial Topics in LawBoy Scouts v. DaleT-THCase AnalysisINTRODUCTIONIn Boy Scouts of America v. Dale, [1] the United States Supreme Court reversed the New Jersey Supreme Courts application of its states public accommodations statute and held that a requiring the reinstatement of an openly gay scoutmaster to the Boy Scouts of America would violate the organizations First Amendment freedom to engage in expressive association. [2] The Court based this holding on evidence provided by the Boy Scouts that the terms “clean” and “morally straight,” as used in the Scout Oath, mean “not homosexual.” [3] Thus, the Court concluded that disapproving of homosexual activity is a specific, expressive message of the Boy Scouts and that such expressive message would be undermined by forcing the inclusion of a gay member into the organization. [4]
The evidence on which the Court based this decision was scant. Although the Boy Scouts introduced certain documents to support its assertion of an antigay message, the source and extent of circulation of those documents were questionable, allowing for a reasonable conclusion that the documents did not truly represent any expressive message of the Boy Scouts. On the contrary, there was evidence that the Boy Scouts, in fact, take no position on homosexuality and that the groups intention in excluding homosexuals was actually to discriminate based on nothing more than the individuals status, something prohibited by New Jerseys public accommodations statute. The Court was able to reach its decision because, rather than being required to look only at objective evidence, courts have broad discretion in determining what the expressive purpose, if any, of an organization is. [5] Such discretion allows courts to infuse their own biases and prejudices, either for or against the organizations asserted expressive message, into their decisions, as arguably the Court did in Dale. To prevent this from happening, courts should adopt a clear statement rule: an organization that wishes to assert an expressive purpose that would require discrimination of a class protected by state law should be required to present a clear statement, found in the organizations written brochures, bylaws, official documents or other publications, of the organizations discriminatory message.
Part I of this paper provides a brief history of public accommodations laws. Part II describes the freedom of association as a constitutional limitation on the application of public accommodations laws. Part III focuses on three Supreme Court cases that are instrumental in understanding the freedom of association and how to determine when a states attempt to enforce equality through its public accommodations statute outweighs that freedom. Given this backdrop, Part IV provides a more detailed analysis of the Dale decision. Part V concludes that in order for an organization to discriminate against any class of people specified in a states public accommodations law, that organization should have an expressive purpose, which would be undermined by the inclusion of a member of that class, that is expressed in a clear statement within the organizations brochures, bylaws, oath, or other objective evidence for courts to review.
I. PUBLIC ACCOMMODATIONS LAWSThe concept behind public accommodations statutes derives from the common law duty of innkeepers and common carriers not to discriminate in offering such services. [6] In 1883, the first federal effort at using a public accommodations statute to end discrimination in privately owned institutions that hold themselves out to the public was struck down by the Supreme Court as unconstitutional. [7] Congress was more successful eighty-one years later with Title II of the Civil Rights Act of 1964. [8] Title II prohibits discrimination on the basis of race, color, religion, or national origin in places of public accommodation, [9] with “places of public accommodations” defined as “establishments affecting interstate commerce or supported in their activities by State action.” [10]
\3\ ————————————————————————— \5\ Id. at 8-9. This means that, when a state legislature or local government seeks exemptions from the restrictions or restrictions imposed on privately held, operated, or publicly financed facilities, they must first consult national accrediting agencies and their own regulations, which are available by regulation, before making such exemption. These accrediting agencies then must decide whether to approve an exemption provided in Title II, an exemption that does not need to be approved in other States. (See § 2(a)(6) above, section 1.3 of C.R.S. § 1123(a)(1)(B) (2012).) A public accommodation’s ability to provide a service other than, say, public transportation is limited by any other statute that provides that the facility has a minimum number of employees that can be hired by a party with particular interests. In general, a public accommodation’s ability to serve a particular group of people in a particular place is limited. (Note that for these reasons the public accommodation may, if it is provided to the individual, refuse service, which is prohibited under State law.) \6\ See, e.g., N.M.A. v. Washington Metropolitan Transportation Co., 634 F St, n. 549 (1982) (court holding that public accommodations may not discriminate on the basis of race, color, religion, race, national origin or sex in locations covered by federal statute); Williams v. Washington Metropolitan Area Transit Co., 435 F. Supp. 843 (D.D. La. 1975) (court upholding federal policy against discriminating on the basis of religion or national origin in private business). The court’s focus on public accommodations is to consider not only what private businesses would have to do with a specific public accommodation, but also whether the private business can provide services under the local and state laws. However, we must be aware of the difficulties that individuals, businesses, and others will face if an appropriate accommodation is denied in a particular particular event or situation. These include finding to protect individuals, business, and individuals, or finding that the establishment of the exemption will be disruptive to those that have access to a particular program or policy, or to the public interest generally. (See supra, p. 7; cf. North Carolina State Univ. v. North Charleston Board of County Commissioners, 535 N.H.2d 652 (1991)); State v. McAllister, 713 P.2d 391, 396 (N.C. 1985).[10] We cannot take judicial notice of changes in the law that may affect the individual’s ability to participate in a particular program, its impact upon his ability to participate in a specific program, or the public interest in finding a particular accommodation to serve certain people. In short, we do not assume that, given local policy, the decisions of a board of county commissioners may not influence the decision of state law. [11] The law for states to define ‘public accommodations’ under current statute does not allow courts to make such determinations. [12] Therefore, it is crucial that this particular classification is applied so in the public interest it is reflected in federal law. \13\ Federal regulation to give local governments flexibility regarding who can
State statutes, however, have more often been invoked and historically have been more effective in eliminating discrimination. [11] Generally, state public accommodations laws are broader in the protected classes covered; most prohibit discrimination on the basis of race, color, religion, sex and national origin, [12] while a minority of state public accommodations laws additionally prohibit discrimination on the basis of sexual orientation. [13] State public accommodations laws also can be broader with respect to the organizations that are covered by the statutes, depending on legislative intent and judicial interpretation. [14] While some states take a narrow view of what qualifies as a place of public accommodations, limiting the statutes coverage to institutions with actual fixed locations, [15] some states take an expansive approach, reaching any organization that holds itself out to the public and gives general public access, regardless of the existence of an actual “place.” [16] Still other states have limited what types of private organizations are covered by the public accommodations laws by limiting the prohibition on discrimination to business establishments. [17]
II. FIRST AMENDMENT LIMITATIONS ON PUBLIC ACCOMMODATIONS LAWSAlthough states efforts at eliminating discrimination through the passage of public accommodations laws is laudatory, it is not absolute and unqualified. Application of public accommodations laws is checked with constitutional limitations, particularly the constitutional freedom of association found in the First Amendment. [18] The Supreme Court has articulated two types of association protected by the First Amendment: intimate association and expressive association. [19]
A. Freedom of Intimate AssociationThe significance of the freedom of intimate association is recognized particularly in small, familial settings. This freedom stems from the important role that close relationships play in shaping each individuals identity. [20] Thus, the government is prevented from engaging in action that would purport to regulate how family members or members of small, selective organizations relate to one another. Although familial associations are probably the best example of an