Free Association: The incoherence of antidiscrimination laws.

Last term's sleeper Supreme Court case was Boy Scouts of America v. Dale, in which the plaintiff sued the Boy Scouts for denying him a scoutmaster position solely because he was gay. New Jersey's antidiscrimination law had recently been broadened to include discrimination based on "affectional or sexual orientation." James Dale won handily in the New Jersey supreme court, which refused to shoehorn the sprawling Boy Scout organization into a narrow statutory exception for clubs or other "distinctively private" organizations. The court recognized that expressive organizations enjoy First Amendment protection for their freedom of association-but ruled that the Boy Scouts weren't such an organization.

The case forced the U.S. Supreme Court to choose between two of its favorite causes-freedom of speech and freedom from discrimination. Most observers thought that the Scouts would lose. But the Court's five-member conservative wing flexed its activist muscles, by holding that the Scouts' First Amendment right to expressive association trumped the antidiscrimination law. It didn't matter that the Scouts' policy statements had hemmed and hawed about letting gays be scoutmasters; Justice Rehnquist said the Scouts did not have to "trumpet" their antigay position "from the housetops" to preserve their First Amendment rights. Justice Stevens's dissent found the Scouts' equivocation fatal to the First Amendment claim, because antigay propaganda was no part of the organization's fundamental mission. The Ku Klux Klan, it seems, can exclude blacks and Jews, because it hates them; the Scouts cannot exclude gays just because it disapproves of their behavior.

The key question is: How does the constitutional guarantee of freedom of speech support the claim for freedom of association? During the 1950s civil-rights struggle in the South, the Court had no trouble figuring out the connection. People who want to speak must work collectively to be effective. To tax or regulate the associations that sponsor speech is to tax and regulate the speech itself. Thus Alabama could not force the NAACP to turn over its membership list to the state, given the evident risk of retaliation. Nor could the local NAACP be forced to admit any hostile outsider to spy on its operations. After all, the right to associate carries with it the right not to associate. The organization is the judge of its membership-period.

Freedom of association is thus a derivative right of freedom of speech. But what happens when the organization concerned is not the NAACP, but the Minnesota Jaycees-a nondescript operation that wanted to offer, exclusively to men, an opportunity for personal growth and community involvement? In 1984, the Court upheld application of Minnesota's ill-named Human Rights Act, which prohibited private organizations from discriminating on the grounds of sex. Justice Brennan, a wary veteran of the earlier civil-rights struggles, forthrightly conceded that the Jaycees' First Amendment right of association was infringed, but said that that interest had to yield to the state's "compelling" interest in eradicating discrimination against women. He concluded that women (who were already allowed associate membership in the Jaycees) could participate in its mission of promoting the well-being of men. But this is too slick. Suppose that the lady Jaycees wanted to exclude men from their membership. Who decides whether their reason is good or bad? Whether men get associate membership? Can a human-rights commission bless women-only organizations, while frowning on men-only organizations?

The state should not be allowed to put its thumb on the scales. Freedom-of speech, association, and contract-carries with it the idea that the right to exclude or include can be exercised for private reasons that need no validation by any public body. An opponent's duty is not to remain silent, but to keep out. Yet the antidiscrimination laws give private critics not only a public forum to vent, but a public hammer with which to beat the groups they oppose.

How are we to decide when the right to exclude should be honored or breached? Alas, there's now a complicated twofold process that gives judicial (and legislative) activism a bad name. First, we are told that all organizations are not equal. Intimate personal associations rank highest on the list, so that no human-rights bureaucrat will force a Roman Catholic to marry a Jew who "otherwise qualifies" as a spouse. At the other extreme are those large impersonal business corporations whose associational rights are deemed weak. In between are the countless-and hitherto voluntary-associations with political, artistic, social, athletic, and religious concerns. Second, all interests are not equal. There is a list of forbidden grounds for discrimination-age, sex, race, ethnicity, religion, handicap, sexual orientation, etc.-but some are more important than others. (Race, for example, is more important than disability.)

Courts must keep both of these continuums in mind simultaneously, and this renders it virtually impossible for them to articulate hard and fast constitutional distinctions. The one feeble tool that organizes their analysis is the distinction between "expressive" and "nonexpressive" organizations. The former covers the Boy Scouts, but not the Jaycees or General Motors.

But the distinction is inadequate. All associations become expressive once they have two or more members. Justice Stevens's misguided insistence that only highly focused and-frequently-extremist organizations get First Amendment protection has the ostensible virtue of giving the right to exclude to the parties likely to value it most. But it comes at the far greater cost of skewing the public debate by giving nut cases an associational freedom denied to more diffuse, but rational and temperate, groups. Encouraging centrist organizations helps create an environment that fosters, not disrupts, social consensus.

The law would be better off not trying to draw any line at all between expressive and nonexpressive associations. It should hew to the simpler line that freedom of speech protects the rights of association for all voluntary groups. The key insight is that private self-selection allows every voluntary organization to give voice to its own membership. If more women flock to women-only organizations, so be it. If more groups practice affirmative action, that's fine as well. All organizations can be masters of their own fate.

That's the true meaning of Dale, once we liberate it from Chief Justice Rehnquist's excessively narrow application to "expressive organizations." Rightly understood, Dale forces us to confront the multiple forms of forced private association that have been staples of the New Deal and the Great Society. For starters, ask whether Title VII of the 1964 Civil Rights Act-which prohibits private employers from discriminating against employees because of race, creed, and sex-can survive constitutional challenge under the First Amendment. If these firms all have their expressive components, then why can the state force them to hire people whom they wish to exclude? Follow Dale, and it is flatly unconstitutional for the U.S. to force any private organization to adopt a color-blind or sex-blind policy in hiring or admission to membership. One university can go all-out for affirmative action; an all-girls school can hire only female teachers; a religious school can admit only coreligionists. But in the midst of this diversity, all face one common risk for eccentric beliefs: They have to attract both faculty and students.

It will be objected that surely the First Amendment was not intended to have such long tentacles. But in fact, other constitutional provisions support this approach. Turn, for example, to private property, regarded by the Founders as the guardian of every other right. The Fifth Amendment states simply that private property shall not be taken for public use, without just compensation. On any reading, private property entails the right to exclude others from one's premises, so the state cannot force apartment-house owners to let cable operators install junction boxes on their roofs for free, or force owners of private marinas connected to public waters to admit all boats. Property and speech also work together to promote associational freedoms. What sense is there in saying that the Boy Scouts could exclude gays from membership if they were forced to admit them to Scout headquarters?

But what of Justice Brennan's claim that neither property rights nor speech rights are absolute? His general conception was right, but the application incorrect. The English common law long held that common carriers, for example, were "affected with the public interest" and thus had to serve all comers on reasonable and nondiscriminatory terms. It was, and is, too dangerous to confer an absolute right to exclude on any monopolist who is part of a complex communication or transportation network. But people who are offended by the Boy Scouts or the Jaycees can go elsewhere. Vigorous competition keeps these organizations in line, so there is no public reason to second-guess their policies. It's different when an airline or phone carrier refuses to serve a customer. The phone company is in the carriage, not the content business; and the airline does not assign seats by political affiliation or moral belief. The nature of these services is standardized and impersonal, so that the rights infringed count for little compared to the major threat that's neutralized-so little, in fact, that one could drop the nondiscrimination rule without altering behavior in the slightest.

This concern about monopoly power applies to both private and public organizations, which explains why the state, given its monopoly of force, has to serve all persons equally. But the principle of equal justice under the rule of law is consistent with allowing private groups strong associational freedoms. It is foolhardy, then, to think we can distinguish speech rights from economic rights. Accordingly, we should show renewed respect to the oft-repudiated pre-New Deal regime that afforded stronger constitutional protection to economic liberties. The Constitution offers strong protection to associational rights without trying to distinguish between the economic and social domains. In Dale, the Supreme Court has taken one short but welcome step down this path-by blunting a frontal attack on associational freedoms.

Much work remains. The New York Times first reported that several cities had denied the Scouts the right to use public parks because of their policy towards gays. That report overstated the local reaction, but it does raise the question of whether local communities could bar the Boy Scouts from use of public facilities because of their discriminatory policies. Sorry, but all forms of state retaliation are out of line. The parks have to be open to the Scouts, and so too do the public streets. Freedom of association insulates all groups from arbitrary state burdens used to coerce people into abandoning their constitutional rights. The Times (which depends on freedom of speech for its intellectual independence) is free to castigate the Boy Scouts, but it showed a serious lapse in editorial judgment in urging state and local governments to exclude Scouts from public facilities. Justice Holmes said long ago that the best test of truth in ideas is competition in the marketplace. The Scouts must be sheltered from government counterattacks-but not from the criticisms of outsiders, the loss of private contributions, and discontent among their members. To those risks, everyone is-and should be-vulnerable, in a free society.