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Reason Foundation

Tolerance for Me But Not for Thee

Freedom of association includes the right to discriminate.

A. Barton Hinkle
June 10, 2011

Gay-rights organizations have been quick to defend the Richmond Federal Reserve Bank after it came under attack for hoisting a gay-pride flag on a pole directly beneath the American flag. The Fed did so at the request of, and to show support for, its gay, lesbian, and transgender employees.

Republican Del. Bob Marshall, the conservative Family Foundation, and others have blasted the Fed for flying the gay-pride flag. James Parrish, the executive director of Equality Virginia, says the Fed is "a private business and should be able to make its own personnel and corporate policy decisions without Bob Marshall's guidance or the Family Foundation's approval."

It's nice to see a gay-rights group take that position. The homosexual community has not always been so open-minded.

A little over a decade ago, gay-rights groups attacked the Boy Scouts of America for refusing to let James Dale, a gay man, become a Scoutmaster. Some argued that this violated a New Jersey law barring discrimination in public accommodations. The Supreme Court ruled 5-4 that the Scouts, as a private organization, had a right to "expressive association": They could not be forced to accept as members people who did not share their fundamental values.
In that case, groups such as the Lambda Legal Defense Fund and the National Gay and Lesbian Task Force argued strenuously that the Boy Scouts had no business keeping Dale out—just as social conservatives, who now denounce the Fed for flying the gay-pride flag, stood up for the right of the Scouts to exclude gays.

Although the positions look hypocritical, they have a certain convenient logic: Gay-rights groups will support whatever they deem good for the cause of gay rights, and religious conservatives will oppose the same, and each will take whatever position on any other issue best serves that end at any given moment. There's a lot of that going around.

Granted, all analogies are inexact. Social conservatives are not suing the Federal Reserve. They recognize that the private institution has the right to fly any flag it wants. What's more, the Scout case did involve a New Jersey statute, which gave gay-rights groups some legal ground on which to stand. Nevertheless, the guiding principles on each side lack internal consistency.

Since then, other cases about the freedom of association have arisen. Last year, the Supreme Court ruled in one concerning the Christian Legal Society at the Hastings College of Law in California—a public institution. The CLS allowed gays and lesbians to join but not to serve as officers. Hastings therefore declined to accept the legal society as a registered student group, thereby denying it funding. In that case, the Supreme Court split 5-4 in favor of the school.

Set alongside the Scouting decision, the Hastings case tells private groups: You can discriminate if you wish—but the public is not obliged to subsidize your discrimination. That makes sense.

Now the issues raised by the Boy Scout case have come full circle. A gay softball group has been taken to court in Seattle over its policy limiting the number of straight players. U.S. District Judge John Coughenour ruled last week that the North American Gay Amateur Athletic Alliance has the same right as the Boy Scouts do to set its membership rules. "It would be difficult for the NAGAAA to effectively emphasize a vision of the gay lifestyle" if it were "prohibited from maintaining a gay identity" by excluding straight people, the judge wrote.

Back when the Scout case was being litigated, a small number of homosexuals could see this coming. Charlottesville resident Richard Sincere, the leader of Gays and Lesbians for Individual Liberty, wrote at the time that "freedom of association is the key" to striking down anti-homosexual laws—which are based on the presumption that when any two gay people get together, straight people should have a say in what they do next. But straight people shouldn't, any more than homosexuals should be able to interfere in the friendships and relationships of heteros.

What both gay-rights and religious-conservative groups seem to have yet to realize is that you cannot claim a right for your friends but deny it to your enemies. If gay groups want the right to exclude straight people, then straight groups must have the right to exclude gays, and vice versa. Picking our own friends is, thus far, one of the least trampled of our liberties—and it ought to stay that way.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.



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