The right to 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?
  • The Wikipedia page (for what it's worth) says that it's okay as long as they believe in God.
    – Vincent
    Jan 10 '15 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 '15 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 '18 at 15:24

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.

  • 2
    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 '15 at 21:32

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:

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.

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 term you are looking for here is whether your organization is a bona fide private club. If you can prove that your organization is a "bona fide private club" (and it is also tax exempt), 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: if any random sandwich shop or corner store could have just put up a sign saying "private club, whites only" while continuing to serve (white) customers normally, then the Civil Rights Act would have been completely useless.

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

Other organization, however, don't always meet the 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 that this was decided based on state law, not federal, which can differ widely.)

  • 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 '17 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 '17 at 13:54
  • There is countless example of natural segregation association e.g., pig butcher union, various livestock breeders association, etc.
    – mootmoot
    Oct 4 '17 at 15:05
  • I'm not sure how that's relevant, @mootmoot. Most organization are clearly made for some purpose, around some common hobby or profession or idea. That doesn't answer the question about whether they'd qualify under the criteria I've linked.
    – BradC
    Oct 4 '17 at 15:28
  • 1
    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 '18 at 1:54

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 to conduct business with the public, at large, is an accommodation that is granted to business by society. As such, you can't accept that accommodation, and then choose to exclude, contrary to laws and rules that govern that 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

  • 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 '18 at 15:49
  • @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 '18 at 22:39
  • 1
    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 '18 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 '18 at 15:09
  • There is currently a Supreme Court legislation that asks if participation services (i.e. Catering or Cake Making) are associations or an accommodation (basically does the seller of a service have the right to refuse a commission for an event he does not agree with politically). A recent lower court ruling in CA does support the position that this is an association, but the SCOTUS decision is pending.
    – hszmv
    Feb 27 '18 at 16:56

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.

  • 3
    -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 '15 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 '15 at 21:51
  • 2
    @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 '15 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 '15 at 15:15
  • 3
    "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 '15 at 11:23

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