Balkinization  

Wednesday, May 18, 2005

Discrimination Warnings

Ian Ayres

I just published a short article with Jennifer Brown over at AlterNet suggesting a way that the New Jersey legislature might make peace with Supreme Court's decision upholding the boy scouts' right to descriminate. Freedom of association guarantees the right of private groups to discriminate, but the legislature might insist upon informed association.

The state might require that to avoid liability a private association must maintain records of written ackowledgements from each of its members indicating that they are choosing to associate with an organization that retains the option of discriminating on certain bases.

A lot of people couldn't bring themselves to sign such a document.

Comments:

Seems like a dangerous precedent to me. I understand where it's coming from, but it seems of dubious constitutionality and very prone to abuse.
 

I wouldn't get my hopes up: if there was widespread desire among parents for gay scoutmasters, the market would supply it. Don't assume that people who in fact disagree with you are stupid and don't know what they are doing.
 

What a loaded suggestion. Wouldn't it be far more accurate to require them to sign a document verifying they they belong to an organization that "proudly exercises its cherished First Amendment right of association"? If not, then why couldn't the same legislature (or a legislature in a conservative state) use shaming techniques against members of the political left who exercise their political rights?
 

Could the government regulate political groups in a similar fashion?

That is, could the government guarantee freedom to dissent from particular policies, but require the organizations pursuing them to receive a written acknowledgement from members acknowledging the same?

For example, could a conservative state (Oklahoma, for example) require organizations that oppose an individual's right to bear arms to disclose that to members? Could the state outlaw organizations that refuse to cooperate with such a requirement?

If not, is it because the first amendment right to freedom of association is trumped by discrimination law but not by other interests asserted by the state? And isn't that just a rejection of Dale, dressed up as something new?
 

"And isn't that just a rejection of Dale, dressed up as something new?"

Exactly, it's just groping around for a way to punish them for exercising a right he doesn't approve of.
 

That post is really a mystery. We have to assume that Ian Ayres is far too smart to take his own suggestion seriously. More likely, he was just blowing off steam, or maybe it just an thought that for some reason struck him as funny.

But unless Ayres himself were granted the power to decide when, where, and why such shaming laws could be enacted, he himself would vigorously (and persuasively) oppose them.
 

typo. Should have been, "More likely, he was just blowing off steam, or maybe it was just an idle thought that for some reason struck him as funny."
 

Could a state require groups to "disclose" that they're not patriotic (by the legislature's definition of that term)?
 

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