Right to Exclude or Forced to Include? Creating a Better Balancing Test for Sexual Orientation Discrimination Cases
By Sara A. Gelsinger.
Beginning at a young age, individuals start choosing to exclude others. Toddlers decide who will be their snack-time seatmates. Children choose whom to exclude from their playground dodge ball team. College fraternities and sororities induct only chosen classmates into their organizations. Businesses pick their preferred employees from stacks of applications.
The ability to include or exclude individuals is often taken for granted as an individual’s or organization’s assumed right. But what happens when an organization refuses to admit a member because she is female? Or because he is Latino? Or because she identifies as a lesbian? Does eradicating discrimination trump one’s choice of association?
In Roberts v. United States Jaycees, the Supreme Court stated that one’s “freedom of association . . . plainly presupposes a freedom not to associate.” However, the Court also recognized that “[i]nfringements on that right may be justified by regulations adopted to serve compelling state interests. . . . Discrimination based on archaic and overbroad assumptions . . . deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic and cultural life.”
A modern-day civil rights battle rages between groups asserting their constitutional right of expressive association and states attempting to eliminate discrimination by enacting non-discrimination statutes. This Comment will argue that the Supreme Court has failed to recognize that eradicating sexual orientation-based discrimination is a compelling state interest. It will also suggest a proposal for balancing an organization’s right of freedom of association with a state’s interest in eradicating discrimination through non-discrimination statutes.