"Disclosure Forms for Discriminators"--A Commentary by Ian Ayres and Jennifer Gerarda Brown
By Ian Ayres, William K. Townsend Professor of Law at YLS, and Jennifer Gerarda Brown, professor of law at Quinnipiac University School of Law and senior research scholar in law at YLS
Imagine that your son wants to join the Boy Scouts. On the parental permission form, you find this paragraph:
"I, the undersigned, acknowledge that the Boy Scouts of America (BSA) retains the right to discriminate on the basis of sexual orientation."
Could you put pen to paper and bring yourself to sign?
Many people who might otherwise allow their sons to join the Scouts would be less willing if they had to sign this sort of disclosure statement. For some, the disclosure might be new information, and once informed they would walk away. For others, the policy against gays would be old news, but seeing it in print over their own signature would create such discomfort that they'd find other, more inclusive activities for their children (such as the YMCA or Campfire Boys and Girls).
Certainly, many parents would sign, either because they gave into their child's desires, or because they supported the BSA's exclusion of gay men from the organization. Even for the parents who decided to sign, the disclosure would be beneficial, because it would ensure that their decision to associate with discrimination was truly informed.
If an organization's failure to disclose discriminatory policies allows it to recruit people who would refuse membership if fully informed, a kind of associational fraud can occur. The state as well as potential members and donors have an interest in preventing this sort of fraud.
We agree with the Supreme Court's opinion in Dale v. Boy Scouts of America that the freedom of association protects the right of individuals to form discriminatory organizations. In Dale, the U.S. Supreme Court established that the BSA and its members had rights of "expressive association" which would be violated if they were forced to extend membership to anyone who failed to meet their admission standards. This meant the BSA could exclude James Dale, an openly gay man. The Court effectively held that the constitutional right of expressive association trumped a state statutory right to be free from discrimination.
But the same animating principle of associational freedom should allow government to require associations to warn prospective members about their discriminatory policies.
The Dale decision struck down the application of New Jersey's non-discrimination statute as applied to the Scouts. But there is nothing to stop New Jersey from passing an "Informed Association Statute." Under this statute, if organizations like the Boys Scouts want to retain the right to discriminate, they would have to obtain written acknowledgments from their members, much like the one we imagine above. Neither these acknowledgements, nor the discriminatory policy they disclose, would have to be made public. But if challenged, a discriminatory organization would have to prove to a court that it adequately warned its members that it wished to retain the right to discriminate.
In our Informed Association statute, silence is a covenant not to discriminate. That is, if you join an organization and it doesn't mention anything to you about discrimination, you'd be safe in assuming that the organization would not discriminate. In fact, this is what most people today assume when they join most organizations, and what most Boy Scouts probably assumed before the Dale case. To discriminate, organizations would have to affirmatively "opt out" of this covenant by adequately disclosing to prospective members how they planned to discriminate, and against whom.
This requirement would help secure the state's interest in preventing people from mistakenly associating with discriminatory organizations. Far from impeding rights of expressive association, this furthers people's informed decision making about how to spend their time, money, and energy -- and with whom they wish to do it.
We bet that it would lead some heterosexual people to walk away. Would you be willing to sign the written acknowledgement? This simple disclosure -- of the organization's policy and of the individual's willingness to associate -- would force some heterosexuals to come to terms with their complicity in discrimination. Boy Scout families would lose any plausible deniability. Ignorance would no longer be an excuse.
Some might choose to join notwithstanding the discrimination, but bring new energy to reform efforts. It's hard to change a discriminatory policy if you don't know it exists. Seeing their signatures connected to an organization's policy statement, though, might generate a greater sense of responsibility among parents. After all, discomfort can be a great spur to action.
Ian Ayres and Jennifer Brown are professors at Yale and Quinnipiac law schools and the authors of Straightforward: How to Mobilize Heterosexual Support for Gay Rights.