Scholar argues that the right of expressive association could compromise antidiscrimination laws.
Could a First Amendment right be protecting discrimination?
In a recent article, Elizabeth Sepper, a professor at The University of Texas at Austin School of Law, argues that the constitutional right to “expressive association”—which the U.S. Supreme Court has defined as “a right to associate for the purpose of engaging in those activities protected by the First Amendment”—has the potential to bypass antidiscrimination laws such as Title VII of the Civil Rights Act.
Sepper explains that the right to expressive association was broadened by the Supreme Court in the case Boy Scouts of America v. Dale. This case, decided in 2000, addressed whether the scouting organization had the right to prevent a gay man, Dale, from being a scoutmaster in their organization when a state law prohibited discrimination on the basis of sexual orientation.
The Court found that the Boy Scouts of America was an expressive association because of its goal to instill values in young men and that allowing Dale to be a scoutmaster would force the organization to communicate a message of gay acceptance. These facts, the Court reasoned, established the organization’s right of expressive association—allowing it to bar Dale and other gay men from being scoutmasters.
Sepper states that Dale was the first time the Court recognized that an organization’s right to expressive association outweighed a state’s interests in equality and antidiscrimination laws. Following the decision, some scholars praised the decision, explaining that the Dale framework could be used to promote policies such as affirmative action when otherwise banned by law. Others scholars, however, feared that the decision would open the door to a limitless right of organizations to bypass antidiscrimination laws and other regulations.
Sepper explains that this mixed reception resulted from the new, deferential three-part test the Court used to decide Dale. In the first part of the test, the Court held that the expression need not be the organization’s purpose, but rather the organization only needs to engage in expressive activity to be considered an expressive association. Moreover, the Court indicated that it would defer to the association’s claims of expression for this part. Sepper argues that this deference would permit any association to count as expressive. The Supreme Court stated, however, that associations could not just “erect a shield against antidiscrimination laws” by claiming to be a burdened expressive group.
The second part of the test requires a showing that the inclusion of someone would “significantly burden” the association’s expression. Again, the Court deferred to the association’s view of what would impair its expression.
The final part of the test addresses how to consider the government’s interest in equality. As Sepper explains, the Court’s standard of review is murky. The Court explicitly rejected applying intermediate scrutiny, but Sepper contends that the Court failed to adopt any specific test otherwise. She argues that the opinion can be read to support a variety of tests, such as a strict scrutiny standard disfavoring the government or a balancing test putting the association’s and government’s interests on equal footing. Other scholars, however, do not conclude that the final test was unclear. Rather, they argue that Dale articulates a demanding compelling interests test.
Despite some scholars’ fears that associations could skirt antidiscrimination laws, Sepper demonstrates that lower courts have significantly narrowed the holding of Dale. Even though groups as varied as sororities and biker groups have launched lawsuits challenging a variety of regulations following Dale, they have had limited success.
Instead, Sepper shows that lower courts have found a number of ways to reject expressive association claims, such as by limiting the holding in Dale so that it applies only to volunteer roles in nonprofit organizations—rejecting claims in employment contexts or commercial transactions.
Sepper acknowledges that expressive association claims had been considered settled law for nearly two decades until a recent trend of new claims urging courts to expand expressive association—with some winning—emerged. According to Sepper, the most significant expansion was in cases allowing organizations to exclude certain groups from employment.
A 2018 federal court’s decision in Our Lady’s Inn v. City of St. Louis, for example, exemplified this recent expansion. The case addressed a nonprofit pro-life pregnancy center that wanted to consider an employee’s reproductive decisions in hiring. The court allowed this hiring discretion under the right to expressive association.
Likewise, the 2021 case of Bear Creek Bible Church v. Equal Employment Opportunity Commission saw a successful challenge to Title VII of the Civil Rights Act as the court upheld a for-profit management company’s status as an expressive association—thus allowing the company to refuse to employ LGBTQ people. Sepper explains that this decision followed the view that the expressive association rights recognized in Dale are not reserved only for advocacy or nonprofit groups but also extend to for-profit entities.
Sepper then outlined a few potential explanations for this resurgence of cases following Dale that have expanded the right of expressive association. For instance, the trend may be the result of increasingly frequent signals from the Supreme Court that people claiming First Amendment protections are not to be second-guessed.
Sepper argues that one recent case that points to this cause is 303 Creative v. Elenis. In this case, the U.S. Supreme Court upheld a web designer’s refusal to create a wedding website for a same-sex couple. Sepper explains that the Court facially resolved the issue on different First Amendment grounds than the right of expressive association, but the Court nevertheless cited to Dale and followed the Dale framework.
Sepper concludes that more expressive association claims will arise that will come into tension with antidiscrimination laws. Sepper predicts, for example, that private schools could lead the next wave of expressive association claims, which could be used to discriminate against students and staff.
Although some people will see these cases as wins for religious freedom and reaffirmations of First Amendment rights, Sepper warns of the “potentially dire consequences for equality in civil society, the workplace, and the market” that may arise if the trend of expanding protection for expressive association continues.
