Does freedom of association give private organizations the right to discriminate on a religious basis?

Question

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?

Answer 1

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.)

Answer 2

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.

Answer 3

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.

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

Answer 4

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.