Thursday, September 19, 2019
McClain: '‘Male Chauvinism’ Is Under Attack from All Sides at Present': Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment
Linda C. McClain (Boston University) has recently posted to SSRN her article '‘Male Chauvinism’ Is Under Attack from All Sides at Present': Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment, Fordham Law Review Vol. 87 , p. 2395 (2019). Here is the abstract:
Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force of the race discrimination-sex discrimination analogy. The parties and their amici invoked NAACP v. Alabama (1957), a significant root of the constitutional right to freedom of association, in strikingly different ways, and strenuously disagreed about how to compare the Jaycees to the NAACP. How did the parties frame the evident conflict between promoting sex (or gender) equality—women’s full participation in society—and protecting freedom of association? What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members an entree to the “Old Boys Network”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘male chauvinism’ is under attack from all sides”? In Jaycees, even as the Supreme Court elaborated upon the values advanced by the First Amendment’s protection of freedom of association, it upheld the application of Minnesota’s public accommodations law to the Jaycees’s exclusion of women from regular membership despite the Jaycees’s freedom of speech and association claims. Both aspects of Jaycees live on, as was evident in arguments made in Masterpiece Cakeshop v. Colorado Civil Rights Commission that related sexual orientation discrimination to other forms of “invidious” discrimination that government may prohibit. This article argues that the relationship between freedom of association and gender equality is double-edged. It concludes by returning to the present day, asking whether the Old Boys Network is simply a relic of the past or has continuing potency. It reflects on some present-day controversies over freedom of association and single-sex organizations.