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Constitutional Law • First Amendment - Free Speech
CONLAW#155
Legal Definition
Laws that prohibit a group from discriminating are constitutional, unless they interfere with intimate association (small group) or expressive activity (e.g., the KKK can exclude non-whites).
Plain English Explanation
in general, the government can make laws that prohibit discrimination by groups against certain types of people. For example, a law could say that businesses can't refuse to serve customers based on their race. However, there are two important exceptions to this rule.
The first exception is for small, intimate groups. Let's say you have a small book club that meets in your living room. As Americans, we believe you should have the right to include or exclude whoever you want from this type of private, personal group. The government can't force you to open up your small, intimate gathering to people you don't want to associate with.
The second exception is for groups that are formed around a specific message or belief. For instance, a group that promotes vegetarianism should be allowed to limit its membership to people who don't eat meat. If the law forced this group to accept meat-eaters, it would interfere with the group's ability to express its core message and purpose. Similarly, the Ku Klux Klan, as abhorrent as its beliefs are, is allowed to exclude non-white people because racism is, sadly, a key part of the group's identity and expression.
The first exception is for small, intimate groups. Let's say you have a small book club that meets in your living room. As Americans, we believe you should have the right to include or exclude whoever you want from this type of private, personal group. The government can't force you to open up your small, intimate gathering to people you don't want to associate with.
The second exception is for groups that are formed around a specific message or belief. For instance, a group that promotes vegetarianism should be allowed to limit its membership to people who don't eat meat. If the law forced this group to accept meat-eaters, it would interfere with the group's ability to express its core message and purpose. Similarly, the Ku Klux Klan, as abhorrent as its beliefs are, is allowed to exclude non-white people because racism is, sadly, a key part of the group's identity and expression.
Hypothetical
Hypo 1: Bob starts a small, invitation-only poetry club that meets weekly in his living room. He decides he only wants to invite other straight, white men to join. When Sam, a gay Latino man, asks to join the group after hearing about it from a friend, Bob denies him membership based on his sexual orientation and race. Sam sues Bob for discrimination. Result: The court would likely rule in Bob's favor, because his poetry club would probably be considered an "intimate association." It's a small group that meets in a private home, and Bob has the right to be selective about who he invites into this personal setting, even if his criteria are discriminatory. The court would be very hesitant to interfere with Bob's choice of who to include in this intimate group, as that would infringe on Bob's associational freedoms.
Hypo 2: Bob founds a new organization called "Straight Pride Alliance." The group's mission statement says that its purpose is "to celebrate and promote heterosexuality and traditional gender roles." Bob limits membership in the group only to straight people, and the group organizes several public rallies and marches. Sam, a gay man, tries to join the group but is denied because of his sexual orientation. Sam sues the Straight Pride Alliance for discrimination. Result: Here, the court would probably side with Bob and the Straight Pride Alliance. Even though the group is discriminating based on sexual orientation, which would normally be illegal, the group is engaged in expressive association. Their core message—celebrating heterosexuality—would be undermined if they had to admit gay members. Just as an environmental group shouldn't have to accept climate change deniers, the Straight Pride Alliance has a First Amendment right to exclude LGBT individuals because including them would interfere with the group's expressive purpose.
Hypo 3: Bob's Diner has a sign that says "We Reserve the Right to Refuse Service to Anyone." When Sam, a Black man, tries to order food there, Bob refuses to serve him and says "we don't serve your kind here." Sam sues the diner for racial discrimination. Bob argues that the diner is a private business and should be able to exclude whoever it wants. Result: In this case, the court would side with Sam. Business generally can't discriminate based on race, even if they are privately owned. A restaurant is a place of "public accommodation," not an intimate, private club, so it doesn't get the same associational rights to exclude people. And serving food is not an inherently expressive activity, so the diner can't claim it has a First Amendment right to exclude non-white customers the way the KKK could. Anti-discrimination laws are constitutional when applied to businesses serving the general public.
Hypo 2: Bob founds a new organization called "Straight Pride Alliance." The group's mission statement says that its purpose is "to celebrate and promote heterosexuality and traditional gender roles." Bob limits membership in the group only to straight people, and the group organizes several public rallies and marches. Sam, a gay man, tries to join the group but is denied because of his sexual orientation. Sam sues the Straight Pride Alliance for discrimination. Result: Here, the court would probably side with Bob and the Straight Pride Alliance. Even though the group is discriminating based on sexual orientation, which would normally be illegal, the group is engaged in expressive association. Their core message—celebrating heterosexuality—would be undermined if they had to admit gay members. Just as an environmental group shouldn't have to accept climate change deniers, the Straight Pride Alliance has a First Amendment right to exclude LGBT individuals because including them would interfere with the group's expressive purpose.
Hypo 3: Bob's Diner has a sign that says "We Reserve the Right to Refuse Service to Anyone." When Sam, a Black man, tries to order food there, Bob refuses to serve him and says "we don't serve your kind here." Sam sues the diner for racial discrimination. Bob argues that the diner is a private business and should be able to exclude whoever it wants. Result: In this case, the court would side with Sam. Business generally can't discriminate based on race, even if they are privately owned. A restaurant is a place of "public accommodation," not an intimate, private club, so it doesn't get the same associational rights to exclude people. And serving food is not an inherently expressive activity, so the diner can't claim it has a First Amendment right to exclude non-white customers the way the KKK could. Anti-discrimination laws are constitutional when applied to businesses serving the general public.
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