Tuesday, December 11, 2007
Nicholas A. Mirkay recently published "Is it 'Charitable' to Discriminate? The Necessary Transformation of Section 501(c)(3) Into the Gold Standard for Charities," (Lexis access required) 2007 Wisconsin Law Review 45. Here is a snippet from the introduction:
Boy Scouts of America v. Dale is perhaps the most renowned recent case involving discrimination by a charitable organization. In that case, a local council of the Boy Scouts of America expelled James Dale, an assistant scoutmaster, after he publicly declared his homosexuality. The New Jersey Supreme Court determined that the Boy Scouts' revocation of Dale's membership violated the state's public-accommodations law, which prohibited discrimination on the basis of sexual orientation. Adopting a divergent view, the United States Supreme Court concluded that the New Jersey law violated the Boy Scouts' First Amendment rights (specifically, the freedom of expressive association) and upheld the organization's right to exclude homosexuals from its membership. Aside from its foundation in the First Amendment, the Supreme Court's decision raised a fundamental issue that remains unanswered: should a charitable organization continue to enjoy the benefits of tax-exempt status if it engages in discrimination?