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Freedom of association "is the right to join or leave groups of a person's own choosing, and for the group to take collective action to pursue the interests of members." The right is implicitly contained in the First Amendment to the US Constitution, i.e., the Bill of Rights. This right has been used by organizations, such at the Boy Scouts of America, to justify discrimination against both homosexuals and atheists.

My questions are:

  • Would this also allow a private organization to discriminate on a religious basis, e.g. could the Boy Scouts also prohibit Muslims, Scientologists, or Mormons from joining?
  • If so, are there any examples in which the right of private organizations to discriminate as such has been upheld in court?
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  • The Wikipedia page (for what it's worth) says that it's okay as long as they believe in God.
    – Vincent
    Jan 10, 2015 at 16:32
  • The Wikipedia page you linked shows that it applies to religious groups, which obviously discriminate based on religion all the time. "Moms for Jesus" or whatever would have no problem excluding someone who wasn't Christian.
    – Geobits
    Jan 13, 2015 at 14:42
  • Does this question allow for the possibility that the private organization has the right to discriminate on a religious basis, but the government is actively violating that right? Feb 26, 2018 at 15:24
  • The Boy Scouts aren't exactly a "private organization". They have a federal charter, and receive government subsidies. Nov 14, 2023 at 0:25

5 Answers 5

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Would this also allow a private organization to discriminate on a religious basis, e.g. could the Boy Scouts also prohibit Muslims, Scientologists, or Mormons from joining?

The answer is: it depends.

Federal anti-discrimination laws normally prevent discrimination by organizations based on race, gender, or religion, but there are a couple of notable exceptions:

1. Freedom of Religion: Law and precedent clearly holds that a church (or temple/synagogue/etc.) can discriminate among potential members based on religious belief, but this is covered by the freedom of religion portion of the 1st Amendment, not by the "freedom of association" portion. So if you can prove to the court that your private school or club is really a church, you can discriminate.

For example, there is a scout-like organization called the Royal Rangers that is, in its founding and in its practice, explicitly and overtly religious. They are closely tied to a specific Christian denomination, they meet in churches, and their curriculum and meetings include Bible lessons and prayer. As a religious organization, they have the right to include or exclude anyone they want.

2. Freedom of Association: If an organization doesn't qualify under freedom of religion, it still might be able to choose their membership based on the "freedom of association" you mention in your question.

The phrase you are looking for here is whether your organization is a bona fide private club. If your organization is a tax exempt "bona fide private club", then you can keep women off your golf course, you can keep blacks out of your Moose Lodge, or atheists out of your scout troop.

(The opposite of a "bona fide private club", by the way, is a "public accommodation", which is an organization that, though privately owned, offers services to the general public.)

How exactly do the courts determine if a club is a bona fide private club? According to the official EEOC standards, this is based on:

  • The extent to which it limits its facilities and services to club members and their guests
  • The extent to which and/or the manner in which it is controlled or owned by its membership
  • Whether and, if so, to what extent and in what manner it publicly advertises to solicit members or to promote the use of its facilities or services by the general public

In other words, to what degree does the club behave like a private club? Does it allow anyone to join? Or is it selective? Does it allow non-members to attend and participate in the same way as members? Or is it truly exclusive?

Think of it this way: without the above rules, any random sandwich shop or corner store could have responded to the Civil Rights Act by putting up a sign saying "private club, whites only" while continuing to serve (white) customers normally.

So yes, the Boy Scouts of America has been found to meet this standard, in State, Federal, and even US Supreme Court cases. They are allowed to exclude atheists and agnostics, and if they decided to, other religions.

Other organizations, however, haven't always been found to meet that standard. The California State Supreme Court found in 1990 that the "Boys Club of America" didn't meet the standard of a "private organization", since they admitted all boys. They weren't "selective" enough. Instead, they were held to the same standard as a "business" under California law, which isn't allowed to discriminate. They are now the "Boys and Girls Club of America." (Note this specific case was decided on CA state law, which has similar but not identical protections to the federal protections discussed above.)

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  • 1
    Had they been a school which only admitted boys, what then? Single-sex education still exists in Britain, mostly in the private sector, but a few state schools remain single-sex. It does still remain in America, doesn't it?
    – WS2
    Oct 4, 2017 at 13:45
  • @WS2 Good question, but much more complicated due to other related US federal laws like Title IX and the 2006 "No Child Left Behind Act". I would guess that the majority of single-sex schools in the US are not only private but are also religious (Catholic, etc.), so fall under the "freedom of religion" exception. See the US Dept of Education Guidelines regarding Single Sex Classes and Schools or Wikipedia for more.
    – BradC
    Oct 4, 2017 at 13:54
  • There is countless example of natural segregation association e.g., pig butcher union, various livestock breeders association, etc.
    – mootmoot
    Oct 4, 2017 at 15:05
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    Very thorough answer, although I must take issue with one point: You wrote, "but this is a guarantee granted by the Freedom of Religion portion of the 1st Amendment." The enumerated rights in the Bill of Rights are not granted by the government but rather a limitation on what government can do. As Americans, it's important to remember that our rights preexisted the Constitution and aren't granted by it.
    – pbarney
    Feb 23, 2018 at 1:54
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    @pbarney Reworded, let me know if that's more to your liking. Your larger question is a bit more philosophical, though; clearly these rights, whether you view them as inherent or not, are protected by US law and courts because they are enumerated in the constitution and its amendments, and upheld by further US law and court precedent throughout the subsequent years. An inherent right isn't meaningful if it isn't recognized as such.
    – BradC
    Feb 26, 2018 at 15:12
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The ability of a private organization to discriminate based on religion is governed by the Religious Freedom Restoration Act or the state equivalent law. Essentially these laws prohibit the government from restricting the free exercise of religion unless the state can prove a compelling interest in doing so and then only in the least restrictive way possible.

There are a lot of pretty obvious grey areas in terms of what counts as a religion, what a compelling interest is and what is the least restrictive way. The Supreme Court has a few rulings that help define these.

What is allowed as free exercise of religion and what is labeled illegal discrimination is often a judgement call that depends on how much money each side wants to spend in court.

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    This doesn't really answer the question. While it tells us that infringements of free exercise are subject to strict scrutiny, it does not tell us whether discrimination in general is an infringement on free exercise or whether it passes that test.
    – Publius
    Jan 12, 2015 at 21:32
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There is the freedom of association, that allows private organizations to choose who can or can't be members of their organization, so in that regard, they can select on pretty much any basis.

GROSS (Get Rid Of Slimy Girls) Club

However, when an organization offers goods or services to the public, then it's no longer about association. There is no inherent right to conduct commerce or business, as evidenced by strict regulations, registration and licensing that businesses have to go through to be allowed to operate as a business. To the degree that even member organizations want to interact with the public, at large, they can no longer rely on the "freedom of association" right to exclude or discriminate against protected classes, religion being such a class. Since they choose to expand beyond just associating with their exclusive membership, they are the ones who have chosen to interact with the public in an expanded capacity, and must abide by the rules that govern that behavior.

In more specific terms, the right an entity to conduct business with the public, at large, is called an accommodation, and that accommodation is granted the ability to operate as a business by society. As such, you can't accept that largess, and then choose to exclude, contrary to laws and rules that govern any public accommodation.

This concept dates back to hundreds of years before the USA even existed, and there are formal court rulings in England in the 16th century to that effect.

Public Accommodations and Private Discrimination - The Atlantic

Businesses Do Not Have a License to Discriminate | ACLU

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  • I have never heard anyone try to argue previously that business/trade is not a right but rather an accommodation. That seems radically warped to me. You could (maybe) say that government contracts are an accommodation, but “society” is composed of individuals, who of course choose freely with whom to do business - there is no accommodation involved. Individuals will choose to do business with you if you have something valuable to offer. If anything, the business is providing a valuable service. If it’s not, it’ll go belly-up (and should).
    – MAA
    Feb 26, 2018 at 15:49
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    @MAA - I think it's rather warped to think of it as any other way. Name any business that can run without a gamut of additional licencing, registration and regulatory requirements. Some really small ones a pass because it would be too much of a pain to check the paperwork on the grade-school lemonade stands, but, really, they also have to meet the requirements to put out a stand. Businesses can't just put out any signage they want, they can't operate wherever they want (just ask any bar or strip club, let alone a strip club bar). Running a business is legally structured as an accommodation. Feb 26, 2018 at 22:39
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    because every business is a bar or strip club... :) You are of course free to think what you choose. My comment was not meant to convince YOU, but merely to flag and hopefully curtail what to me is a deeply flawed (potentially harmful) ideology. Governments that restrict citizen’s rights to barter and trade with one another are in the wrong. This does not mean that governments are not capable of doing wrong things - most do. Regardless - your claim was that society accommodates businesses by allowing them to operate. The truth is that society can’t exist without business.
    – MAA
    Feb 26, 2018 at 23:01
  • @MAA - awesome strawman, there, since I never made anything resembling the claim that all business are those types. But, hey, if you can't make an honest argument, at least I know there's no point in attending to your comments. Feb 27, 2018 at 15:09
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    @MAA of course businesses do some things that benefit society. That doesn't imply that everything that businesses (want to) do benefits society. The dogmatic belief that a marketplace that optimises for profit automatically optimises for societies benefit is either obviously incorrect, or not a definition of "societies benefit" that I find moral.
    – Caleth
    Dec 7, 2021 at 11:48
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The question should include should, or perhaps under who's interpretation.

And I have a huge problem with this line: "and for the group to take collective action to pursue the interests of members."

That isn't within the definition - that sounds more like something from Corporate Law. Freedom of association is about individuals, not about companies, even if by law a corporation has many of the rights and privilege's as a group that its members do.

The short answer is YES. The first amendment is also known as the amendment that defined freedom of conscience. What you think, and what you choose, is up to the individual, and a government should not interfere with that. Laws related to this should only be used to regulate conflicting spaces, usually in the form of privatization.

Religion at the individual level, from this perspective is a personal conscience choice.

The first amendment does a little bit more - it says the government is prohibited from basically choosing or oppressing a religion.

The first is a Natural Right. The second is an anti-tyranny pill.

In this context the BSA are free to choose who its members are via whatever method they want. They don't have to be a religious organization to do it. Religions don't have special rights.

So yes, the bad news is that a particular night club can restrict who enters based on how tall they are. However the good news is that an organization that deals with woman's issues is perfectly OK also. Or a gay night club can prevent women from entering. A HBCU can form, and part of their charter can be "Must have 1 drop of African blood".

About "public accomodations". Technically a public accommodation law cannot trump anything in the constitution, and via the 9th amendment, a natural right. But we've created this special.. categorization, and have based law around it. It should be limited to accommodations as designated by law, where that property may or may not be controlled by a private entity; for example a park, or a road. It currently includes either anything open to the public, or that affects commerce. This makes private property mean only places where people perhaps talk and use a service. No selling or exchanging of goods allowed. Based on this interpretation, private entities would normally be restricted in what they can do while remaining private, but they have gotten around this by forcing people to be members in order to partake in the accommodation. Uber is one of the largest examples of this; they would be called a taxi, and would have to accommodate many laws related to being a taxi. But by being members only, they ripped the rug out from under taxi businesses: No background checks, and then later background checks based on different criteria, pickups and drop offs from anywhere, fees changing dynamically, minimum wage laws (although that last one was based on contractor vs employee status). I'd be curious how a judge would find the case for Costco or BJ's wholesale Clubs, where membership is required, but they buy and sell things, thus engaging in commerce.

I find the whole thing a farce. Government is not about a grab bag of things the majority wishes for - even if the resulting laws do fix things while working around the limits of the constitution. Laws run roughshod over constitutional limits if there is any daylight apparent in the interpretation of the law. The case of the Colorado cake maker being forced to create a gay design on a cake that he had no problem selling is an example of something that should never be forced under the law.

BSA is not a public accommodation. This should mean that it can do whatever it likes (with respect to membership).

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  • Your answer could be improved with additional supporting information. Please edit to add further details, such as citations or documentation, so that others can confirm that your answer is correct. You can find more information on how to write good answers in the help center.
    – Community Bot
    Nov 8, 2023 at 22:39
  • Thank you Mr. Bot - my answer was given to provide a perspective on a more libertarian interpretation of constitutional law, and not prove that courts have always interpreted the constitution this way. Judges change. But I did give a few examples in my explanation that might be clarified so that they stand the test of time. Nov 13, 2023 at 20:30
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No, it does not. The Civil Rights Act of 1964 prohibits many private organizations from discriminating on the basis of race or religion, including "hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce". It also prohibits employers from discriminating in employment and prohibits discrimination from groups receiving Federal money. The law does exempt "private" clubs (though does not define the term "private").

Just because a law is passed doesn't mean that it is Constitutional, but in this case, the Supreme Court ruled the law Constitutional in Heart of Atlanta Motel, Inc. v United States. The Supreme Court found that requiring businesses not to discriminate was not a violation of a business owner's right to run his business how he pleased, and that Congress derived its authority to regulate discrimination from the Interstate Commerce clause.

So many private organizations do not have the right to discriminate; the Civil Rights Act prohibits them from doing so, and the Supreme Court has found that that is not a violation of the organization's rights.

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    -1 - while factually correct, the emphasis of the question was on association, not commerce. This answers a question different to one that was asked.
    – user4012
    Jan 11, 2015 at 14:12
  • @DVK The question was whether discrimination was protected by the first amendment My answer is that it is not protected by any amendment, as it is (in many circumstances) illegal. It answers the OP's question.
    – Publius
    Jan 11, 2015 at 21:51
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    @Avi - I'm with DVK on this one. The question's pretty clearly about association, and whether organizations can discriminate in who can join. Any discussion of businesses providing services to the public is irrelevant to answering it.
    – Bobson
    Jan 12, 2015 at 14:45
  • +1 I appreciate your answer. I would still be interested in hearing if non-commercial organizations, such as the BSA, have the right to discriminate on a religious basis. Jan 12, 2015 at 15:15
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    "What isn't forbidden, is allowed", and that is including discrimination - except where it IS forbidden. "hotels, motels, restaurants," employers etc are forbidden from discriminating. Whoever isn't covered by this law, is still allowed to discriminate. There may be more laws that extend the scope of ban on discrimination, but "by default" it's allowed, and the law only introduces exceptions to that.
    – SF.
    Mar 6, 2015 at 11:23

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