The Los Angeles Times editorial board misleadingly suggested a proposed California anti-discrimination bill that would affect the Boy Scouts of America because of its anti-LGBT policy was not only unfair, but unconstitutional.
On April 10, the Los Angeles Times announced it was opposed to a new California bill that would deny a state sales and use tax exemption to any public charity youth organization that discriminates on the basis of "gender identity, race, sexual orientation, nationality, religion, or religious affiliation," thereby aligning the conditions of this exemption with other state anti-discrimination law and policy. Because the government subsidy at issue is used by the Boy Scouts of America, the LAT correctly observed that its policy of discrimination on the basis of gender identity and sexual orientation would run afoul of the proposed Youth Equality Act. The editorial board questioned whether the Boy Scouts "should be singled out from other nonprofits" and suggested this was inconsistent with Supreme Court precedent that allows the Boy Scouts to ban LGBT members because of the group's "expressive message." From the editorial:
Under [The Youth Equality Act (SB 323)], carried by Sen. Ricardo Lara (D-Bell Gardens), the Boy Scouts of America (though unnamed in the bill) would have to pay state sales taxes as well as taxes on any money it raised in California -- such as the proceeds from hawking caramel corn, Christmas trees or anything else -- unless it admitted boys who are gay or transgender.
The aims of the bill are understandable and even laudable. But the Scouts' membership policy has been upheld by the U.S. Supreme Court, which in 2000 ruled 5 to 4 that the ban on gay members is protected under the Constitution because the group's opposition to homosexuality is part of its "expressive message."
We yearn for the day when the closed-minded leaders of the Boy Scouts join the 21st century, but we also worry about the implications of SB 323. If legislators can go after the Scouts for engaging in legal (though offensive) behavior, what group will they go after next?
The LAT is referring to the split decision of Boy Scouts of America v. Dale, which recognized that the Boy Scouts' current mission was inseparable from its "deplorable and offensive" ban. This decision does not, however, undermine the constitutionality of the Youth Equality Act, which applies to any and all organizations receiving subsidies that continue to discriminate against LGBT children and adults. Contrary to the editorial's assertions, the Boy Scouts of America is not "singled out" by the clear language of the bill, strongly indicating the constitutionality of its anti-discrimination principles.
The Supreme Court has long held that there is no absolute right to government subsidies that trumps relevant anti-discrimination law, as long as the legislation is applicable to all, regardless of viewpoint. This constitutionality of viewpoint-neutral anti-discrimination law was most recently upheld in Christian Legal Society v. Martinez (2010), which pointedly noted that reliance on Dale as a challenge to anti-discrimination conditions on state aid is misplaced because the issue in Dale was a different type of law that "compelled a group to include unwanted members, with no choice to opt out."
Unlike the challenged legislation in Dale, the Youth Equality Act will not force the Boy Scouts to admit LGBT members. They can continue their discrimination, they just will no longer be able to discriminate and receive this type of government subsidy. Writing for the majority in Christian Legal Society, Justice Ruth Bader Ginsburg held that "[t]he First Amendment shields [an organization that discriminates] against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But [such organization] enjoys no constitutional right to state subvention of its selectivity."
As explained by one of the most prominent First Amendment scholars in the country, UCLA Professor of Law Eugene Volokh, writing on the conservative/libertarian group blog The Volokh Conspiracy:
I doubt that this is a good idea, but I do think it is constitutional: As I've argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups' expressive association rights -- just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court's decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have to be defeated in the political process, not in court.