In a case of potential importance for nonprofit membership organizations, the Supreme Court held in 2000 that the Boy Scouts of America enjoyed a freedom of association that allowed them not to accept avowed homosexuals as adult leaders. Trade-association lawyers expected litigation to follow that would test the limits of organizations’ abilities to exclude persons based on their practices or beliefs.
That litigation has in fact occurred. Since the Boy Scout case, courts have seen claims that universities acted wrongly in excluding Christian organizations from campus meetings (focusing on the organizations’ rights to exclude members), that universities acted wrongly in excluding military recruiters (focusing on the university’s right to exclude persons) and gun owners’ rights not to gain a facilities license without joining a gun club.
Two cases in particular have gained some interest. In a Phoenix case, members of sex swingers clubs challenged an ordinance that prohibited a business “for purposes of providing the opportunity to engage in, or the opportunity to view, live sex acts.” The sex swingers’ expert defined them as ‘individuals’ who have sexual encounters with two or more people at the same time.” They claimed that the ordinance interfered with their right to associate with each other. After all, they said, if the state cannot forbid the Boy Scouts from deciding whom they will associate with, how could the state interfere with the sex swingers’ deciding whom they will associate with. The federal district court in Phoenix denied the challenge. Under the ordinance, the court said, the sex swingers can do what they want to at home; they just can’t do it in public clubs. The Court of Appeals affirmed the decision.
The other case arose in Texas. Nudists claimed that the Boy Scout case gave them the right to bring their children to nude beaches in a public park. (A footnote noticed that the park “is also known locally as Hippie Hollow.”) Again, the Court — here a state court of appeals — held that the parents could pursue their nudist philosophy but not in public.
As those cases show, courts are struggling to find the limits of the teaching of the Boy Scout case. We think it will take another several years before courts find those limits. More inventive attempts to expand the teaching of that case will continue to fail. In the meantime, organizations that exclude members based on beliefs — such as excluding smokers from activities of medical societies – will continue to find help in the Boy Scout case.