Posted by Eugene Volokh:
Intimate Association, Fraternities, and Government Subsidies:
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189711572
The public College of Staten Island refuses to officially recognize
groups that discriminate based on sex; this refusal denies the groups
various benefits. Last year, [1]a federal district court held that the
College's policy violated a fraternity's right to intimate
association. Today, the Second Circuit [2]reversed the district
court's decision.
I [3]have argued the district court decision was indeed a mistake: The
University is choosing not to fund certain exercises of a
constitutional right to intimate association, and the government is
generally perfectly free not to fund the exercise of a constitutional
right, even when it funds other activity (including activity that's in
some ways an alternative to that exercise of a constitutional right).
Consider some examples ("need not" below means "has no federal
constitutional obligation to"):
Right to abortion New York may not ban abortions, but it need not pay
for them with state funds, or allow them to be performed at state-run
hospitals even if it chooses to pay for childbirth.
Right to free speech New York may not ban advocacy of a candidate or a
legislative proposal, but it need not subsidize it through the
charitable tax exemption even if it subsidizes non-electioneering,
non-lobbying speech through the charitable tax exemption.
Right not to marry New York may not require people to marry, but it
need not give unmarried couples or platonic roommates special dorm
housing, even if it subsidizes married couples by offering such
housing.
Right to privately educate one's children New York may not ban private
education, but it need not pay for private education, even if it pays
billions for public education.
For more on these examples, see my [4]Freedom of Expressive
Association and Government Subsidies, 58 Stanford Law Review 1919
(2006), which discusses all this in the context of the right to
expressive association rather than intimate association.
I'm not sure about some of the Second Circuit's analysis in today's
decision, but the general thrust seems correct: "[The college's]
refusal to subsidize the Fraternity's activities does not constitute a
substantial imposition on the group's associational freedom. See[,
e.g.,] Regan v. Taxation with Representation of Washington, 461 U.S.
540, 546 (1983) ('We again reject the notion that First Amendment
rights are somehow not fully realized unless they are subsidized by
the State.')" Sounds right to me.
References
1. http://www.volokh.com/posts/1158696685.shtml
2.
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQxMTEtY3Zfb3BuLnBkZg==/06-4111-cv_opn.pdf
3. http://www.volokh.com/posts/1158696685.shtml
4. http://www.law.ucla.edu/volokh/association.pdf
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