gender equality; freedom of association; sexual-orientation discrimination


This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation discrimination and on the limits of freedom of association claims in both contexts. It highlights how parties and amici in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission relied on Jaycees to connect race and sex discrimination to sexual-orientation discrimination. In Masterpiece Cakeshop, the petitioner—a baker who refused to create a wedding cake for a same-sex couple—argued that the application of Colorado’s public accommodations law to him violated his right to free exercise of religion and impermissibly compelled his creative expression. I focus in particular on the arguments made by the National Women’s Law Center, an amicus in support of the respondents. Part III returns to Jaycees and examines the arguments made by the parties and their amici regarding the evident conflict between promoting sex 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”? Part IV briefly returns to the present day and asks whether the old boys network that presented such a vexing barrier to women’s economic and career mobility is simply a relic of the past or has continuing potency. Part IV concludes by comparing some present-day controversies over freedom of association and gender equality to those fought out in Jaycees.