Exclusions of groups and designated public fora

[Lederman, Marty]

If the payroll-deduction discrimination were on the basis of the BSA's speech, the case would pretty much be controlled by Cornelius, no?  (Viewpoint discrimination prohibited.)

But as I understand it, the check-off to BSA is denied based on BSA's discriminatory membership policy, not its speech; and therefore there is no free speech issue at all.  The more interesting question is at what point the state would be constitutionally *prohibited* from funding discriminatory private organizations, and whether those same constitutional restrictions would apply to a salary check-off program.  Cf. Norwood v. Harrison.

Marty Lederman



-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Wednesday, June 14, 2000 5:14 PM
To: RELIGIONLAW at listserv.ucla.edu@inetgw2
Subject: Exclusions of groups and designated public fora


        I think David has to be right that when the government is providing
a subsidy -- such as a payroll deduction contribution -- to a small set of
groups, the government should be able to discriminate based on the content
of the groups' speech (I'd say even based on their viewpoint), and a
fortiori based on the groups' discriminatory selection policies.  Cf. Rust
v. Sullivan.  The Equal Protection Clause may pose some constitutional
barriers when the distinction turns on suspect classifications; for
instance, including groups that fund scholarships for blacks but excluding
groups that fund scholarships for whites would at the very least have to be
judged under strict scrutiny, and might well fail that scrutiny.  But the
Free Speech Clause and expressive association principles won't pose a
barrier.

        On the other hand, I don't think this can be extended to general
programs such as tax exemptions; I don't think the government can just say
"The KKK and other groups that advocate racism are denied an exemption."
See Speiser v. Randall.  The tax exemption, I think, is an equivalent of a
sort of designated public forum, and is subject to the usual
viewpoint-neutrality and perhaps even in large measure content-neutrality
requirements.  Cf. Rosenberger; Southeastern Productions v. Conrad.

        This, I think, poses two questions:  (1)  How would one classify the
forum at issue here?  (For instance, what should happen if the government
refused to include the People for the American Way or the NRA, on the
grounds that it doesn't want to subsidize their speech?)

        (2)  Even if it is a designated public forum, and discrimination
based on the viewpoint or even content of the subsidized group's speech is
prohibited, may the government discriminate based on the group's exercise of
its expressive association rights?  (I'm tempted to say that the answer is
probably yes, but I'm not at all certain.)

> -----Original Message-----
> From: David Guinn [SMTP:dsg at PRCHFE.ORG]
> Sent: Wednesday, June 14, 2000 2:12 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: BSA and State Action
>
> I have to admit that I think that it is acceptable for the state to
> discriminate against behaviors it finds unacceptable (in line with Bob
> Jones.)  I think the state can refuse to co-operate and support (directly
> by funding or indirectly through tax exemptions or employee deductions)
> organizations which discriminate against others in ways that we have, as a
> society, found to be unacceptable.  I have no problem with the state
> refusing to grant a tax exemption or payroll deduction for the Klu Klux
> Klan or the Aryan Nation.  While those groups have a right to exist (ie.
> the state can't simply shut them down) the state does not need to support
> them.
>
> Among the organizations you mention, providing support for the elderly or
> black youth (as a historically disadvantage group) typically fall among
> the types of programs that the state itself offers.  The most
> controversial group on the list is perhaps Catholics for a Free Choice -
> though I don't see that group discriminating against people in an
> objectionable way.   To me they are analogous to Planned Parenthood and
> NOW as advocates for women's rights.  My only question with regards to CFC
> would be if the list included other quazi-religious groups - and I'm not
> sure that would be definative.
>
> David
>
>       -----Original Message-----
>       From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
>       Sent: Wednesday, June 14, 2000 3:40 PM
>       To: RELIGIONLAW at listserv.ucla.edu
>       Subject: Re: BSA and State Action
>
>
>
>               Any thoughts about the Boy Scouts' argument that "the
> state's employee charitable campaign list 'includes numerous organizations
> which limit or preferentially offer services on the basis of age like
> Services for the Elderly of Farmington, ethnicity like the National Black
> Child Development Institute and religious groups like Catholics for a Free
> Choice'"?
>
>
>       David Guinn writes:
>
>               BSA's Anti-Gay Stance at Issue
>       Scouts Sue Conn. over Payroll Snub
>       Associated Press
>
>               The Boy Scouts of America has filed a federal lawsuit
> claiming the group
>       was removed from a list of charities eligible for state payroll
>       deductions because of its stance on gays.  Boy Scouts' lawyer George
>       Davidson said the ``selective targeting of the Boy Scouts for
> exclusion
>       based on their dislike of the Boy Scouts' message is
> unconstitutional.''
>
>               < <http://news.findlaw.com/news/s/20000613/scoutssue.html>>
>
> -----------------------------------------------------------------------
>       Pursuant to our recent discussion, it seems to me appropriate for
> Connecticut to do this.  Insofar as the Scouts are seeking the protection
> of private associate, this further removes the scouts from implication as
> a state actor.  In our prior discussion, the point I found most troubling
> was the fact that the scouts benefited so much from state support (i.e.
> use of schools, governmental sponsorship etc.) that I had difficulty not
> imputing their discriminatory attitude towards gays to the state which
> gave them so much support.
>
>               David
>