Does that mean that the American public and its government must accept, even condone, discrimination and stand idly by? Certainly not. The right of free association is not the only element in play here.
One possible response to the BSA’s ban on gay scouting respects the BSA’s First Amendment rights while strongly discouraging the BSA’s policy of discrimination. It is a response the Nixon administration used effectively: The Internal Revenue Service could revoke the BSA’s nonprofit status. The BSA could continue its discrimination, but the federal government would no longer subsidize the organization. Charitable contributions to the BSA would no longer be tax-deductible.
This way forward has constitutional roots in a case decided 30 years ago. At the time, Bob Jones University admitted African American students but banned interracial dating and any advocacy of interracial marriage. Legislation bluntly prohibiting these policies might have led to a decision — similar to the Supreme Court’s decision in Dale — holding that Bob Jones University’s First Amendment rights had been violated.
Instead of pursuing a ban through legislation, the Nixon-era IRS applied federal law so that discriminatory groups would no longer receive the public subsidies associated with nonprofit status. In a landmark decision, the Supreme Court upheld the IRS reading of the law and ruled that making nondiscrimination a condition for tax-exempt nonprofit status was compatible with Bob Jones’ constitutional rights.
It does not follow that the right to free association entitles discriminatory groups to enjoy public support in the form of tax-exemption. As Chief Justice Burger wrote in Bob Jones University v. United States, “Charitable exemptions are justified on the basis that the exempt entity confers a public benefit.” One condition for providing a public benefit should be respect for the equal rights of all citizens, gay and straight alike.
In defending its free association right, the BSA has delivered a message that gays cannot live the “morally straight” lives that are central to its purpose of preparing future leaders for America. The alleged connection between the BSA’s message and its purpose is flawed. The message excludes some children from leadership training under the BSA.
But even if we grant that the BSA’s freedom to discriminate in its membership is protected under the First Amendment, there is still a critical role for the government to play. The government has an obligation to express its own core message that all citizens — people of all sexual orientations — are entitled to full participation in society. If the BSA seeks government protection under the First Amendment for its anti-gay membership policy, it should also be prepared for criticism of its discriminatory message. The government should promote the principle that all citizens are free and equal by refusing to grant publicly funded tax exemptions to discriminatory groups, including the BSA. As I argue in my recent book, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality, it is essential that the government not subsidize discriminatory groups, even if these same groups have rights against coercive sanctions. States can also pass legislation to cut off subsidies for discriminatory groups. New Jersey, for instance, which originally sought to ban discrimination in private organizations such as the BSA, should now set stricter standards for state tax deductibility.
Residents of all states should demand that tax deductions for charitable gifts should not be available to support groups that discriminate and refuse to offer a public benefit to all citizens.
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Corey Brettschneider is professor of political science at Brown University. He is the author of When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012)