right of expressive association

The Forum for Academic and Institutional Rights, Inc. (FAIR) is an association of law schools and law faculties whose members have adopted policies expressing opposition to discrimination based on sexual orientation. These members objected to the military's policy regarding homosexuals in the military and sought to restrict military recruiting on their campuses. In response to such restrictions by law schools, Congress enacted the Solomon Amendment, which denies specified federal funds to institutions of higher education that do not provide military recruiters access equal to that provided other recruiters. In 2003, FAIR filed suit against enforcement of the Solomon Amendment and sought a preliminary injunction. At that time, the statute prevented the Department of Defense from providing funds to institutions that prohibited or prevented military recruiters from gaining entry to campuses. After the September 11, 2001 attacks, the Department of Defense had adopted an informal policy requiring equal access in quality and scope to students. Some law schools had previously arranged for military recruiters to interview on the undergraduate campus to comply while maintaining their policies. The District Court for the District of New Jersey denied the preliminary injunction. The court concluded that FAIR had not established a likelihood of success on the merits of its claims. Congress subsequently amended the Solomon Amendment to codify the equal access requirement, specifying that military recruiters must receive access at least equal in quality and scope to that provided any other employer. FAIR appealed to the Court of Appeals for the Third Circuit. A divided panel of the Third Circuit reversed the District Court and remanded with instructions to enter a preliminary injunction against enforcement of the Solomon Amendment. The Supreme Court granted certiorari to review the Third Circuit's decision.

Hastings College of the Law is a public law school within the University of California system. It maintains a Registered Student Organization program that grants official recognition to student groups. Recognized groups receive benefits including eligibility for school funds drawn from mandatory student activity fees. They also receive use of school facilities and channels of communication such as bulletin boards and email lists. Finally, they receive permission to use the school's name and logo. In exchange, all RSOs must comply with Hastings' Nondiscrimination Policy. Hastings interprets this policy to require every recognized group to accept any student as a member or leader regardless of status or beliefs. At the beginning of the 2004-2005 academic year, Hastings students formed the Christian Legal Society chapter by affiliating with the national Christian Legal Society. The chapter adopted bylaws requiring members and officers to sign a Statement of Faith. The bylaws also required members to conduct their lives in accordance with prescribed principles. One such principle is the belief that sexual activity should occur only within marriage between a man and a woman. CLS interpreted its bylaws to exclude students who engage in unrepentant homosexual conduct. It also excluded students who hold religious convictions different from those in the Statement of Faith. On September 17, 2004, CLS submitted an application for RSO status together with the required bylaws. Hastings rejected the application because the bylaws excluded students on the basis of religion and sexual orientation. CLS formally requested an exemption from the Nondiscrimination Policy. Hastings declined the request. CLS then filed suit under 42 U.S.C. §1983 against Hastings officials. The suit alleged violations of its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. The parties later stipulated that Hastings requires all RSOs to allow any student to participate, become a member, or seek leadership positions regardless of status or beliefs. On cross-motions for summary judgment, the District Court for the Northern District of California ruled for Hastings. The Ninth Circuit affirmed in a brief opinion. The Supreme Court granted certiorari. After the denial of RSO status, CLS operated independently during the 2004-2005 academic year. It held weekly Bible studies, social events, lectures, and banquets. The number of students attending its meetings doubled the following year. Hastings offered CLS access to school facilities for meetings. It also offered generally available bulletin boards and chalkboards for announcements. However, CLS did not receive RSO-specific benefits.

In 2004, voters in the State of Washington passed an initiative changing the State’s primary election system. The People’s Choice Initiative of 2004, or Initiative 872 (I–872), provides that candidates for office shall be identified on the ballot by their self-designated party preference, that voters may vote for any candidate, and that the top two votegetters for each office, regardless of party preference, advance to the general election. For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary. From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election. After the decision in California Democratic Party v. Jones, the Court of Appeals for the Ninth Circuit struck down Washington’s primary as materially indistinguishable from the California scheme. The Washington State Grange promptly proposed I–872 as a replacement. It passed with nearly 60% of the vote and became effective in December 2004. Immediately after the State enacted regulations to implement I–872, the Washington State Republican Party filed suit against county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs. The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county auditors as defendant. The United States District Court for the Western District of Washington granted the political parties’ motions for summary judgment and enjoined the implementation of I–872. The Court of Appeals affirmed the district court judgment.

The South Boston Allied War Veterans Council, an unincorporated association of individuals elected from South Boston veterans groups, has organized the annual St. Patrick's Day-Evacuation Day Parade since 1947. Mayor James Michael Curley granted the Council authority to organize and conduct the parade. Every year since then the Council has applied for and received the sole permit for the event. The parade has at times included as many as 20,000 marchers and drawn up to 1 million spectators. No other applicant has ever applied for that permit. In 1992 gay, lesbian, and bisexual descendants of Irish immigrants joined together with other supporters to form the Irish-American Gay, Lesbian and Bisexual Group of Boston, known as GLIB. GLIB sought to march in the parade to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The group also wanted to demonstrate that such men and women exist among those descended from Irish immigrants and to express solidarity with similar groups seeking to march in New York's parade. The Council denied GLIB's application. GLIB obtained a state-court order and marched uneventfully among the 10,000 participants and 750,000 spectators that year. In 1993 the Council again refused GLIB's application. GLIB and some of its members sued the Council, its leader John J. Hurley, and the City of Boston. The suit alleged violations of the Massachusetts public accommodations statute, which prohibits any distinction on account of sexual orientation in places of public accommodation. The state trial court found that the parade had traveled the same basic route for at least the past 47 years. The court also found that the Council had no written criteria and employed no particular procedures for admission. The Council had occasionally admitted groups that simply showed up and did not generally inquire into applicants' messages. The parade contained an eclectic variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes. The trial court concluded that the parade was a public accommodation because of the lack of genuine selectivity in choosing participants. It found that GLIB had been excluded because of its members' sexual orientation. The court ordered that GLIB participate on the same terms as other groups. The Supreme Judicial Court of Massachusetts affirmed the trial court's findings that the parade lacked any specific expressive purpose and that exclusion rested on sexual orientation. The United States Supreme Court granted certiorari to review petitioners' claim that the state courts' application of the public accommodations law violated their First Amendment rights.

In 1920, the United States Jaycees was formed as a nonprofit membership corporation incorporated in Missouri with its national headquarters in Tulsa, Oklahoma. The organization's bylaws established regular membership limited to young men aged 18 to 35, with associate membership open to women and older men who could not vote or hold office. By 1981, it had grown to about 295,000 members across 7,400 local chapters affiliated with 51 state organizations. Beginning in 1974 and 1975, the Minneapolis and St. Paul chapters admitted women as regular members, prompting the national organization to impose sanctions such as denying eligibility for offices and awards and refusing to count their votes at conventions. In December 1978, the national president notified the chapters that revocation of their charters would be considered at an upcoming board meeting. Shortly thereafter, chapter members filed discrimination charges with the Minnesota Department of Human Rights alleging violation of the Minnesota Human Rights Act. Following an evidentiary hearing, the hearing examiner found the Jaycees to be a place of public accommodation and ordered it to cease discriminating on the basis of sex. The Minnesota Supreme Court upheld the determination that the organization constituted a public business facility under the Act. The Jaycees then renewed its federal lawsuit in the District Court for the District of Minnesota against state officials, claiming that enforcement of the Act infringed constitutional rights. After trial, the District Court ruled for the state officials, but the Eighth Circuit reversed. The Supreme Court granted review of the case.