Can the Gay Softball World Series Discriminate Against Straight Athletes?

Well, if it can't, then you can't really have a North American Gay Amateur Athletic Association, can you? Eugene Volokh directs our attention to Apliado v. NAGAAA, a decisions coming from the US District Court in Seattle.

As I understand the case, a "protest committee" formed by NAGAAA decided that D2, the team that came in second in the Gay Softball World Series, was in violation of "Rule 7.05 of the NAGAAA Softball Code… [which] states that "[a] maximum of two Heterosexual players are permitted on a GSWS roster.""

The protest committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that Plaintiffs be suspended from NAGAAA softball play for one year.

The three heterosexual players (Steven Apilado, LaRon Charles, and Jon Russ) sued under Washington's Law Against Discrimination. The District Court found in favor of NAGAAA.

There are obvious reasons for discriminating between different classes of individuals in eligibility requirements for sports leagues. The Special Olympics comes to mind, as well as sexually segregated sports and coed sports. Those cases of discrimination turn on distinct classes of athletic abilities. Coed sports, for example, may actually discriminate within a game, as for example a rule that limits the number of times a volleyball can be hit by players of one sex. The purpose of that rule is to make sure that male players do not dominate the game to the exclusion of female play.

Presumably there is no such factor involved in forming a Gay softball league. So how does one justify discrimination against heterosexual players by the NAGAAA? The District Court ruled under Boy Scouts v. Dale.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA's decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things:

(1) NAGAAA is an expressive association,

(2) forced inclusion of unwanted members would affect NAGAAA's ability to express its viewpoints, and

(3) NAGAAA's interest in expressive association outweighs the state interest in eradicating discrimination.

Is NAGAAA an expressive association? Yes, if the Boy Scouts of America is. NAGAAA can claim to be making a point about LGBT persons, and it works in their favor that they also exclude "closeted" gays.

I am strongly inclined to agree with the District Court on this one for the same reasons as I agreed with the High Court in Boy Scouts of Am v Dale. Free speech and freedom of assembly give people the right to form expressive associations. With that comes the right to exclude persons who do not agree with the collective expression. The Boy Scouts can exclude homosexuals and, presumably, atheists, just as a Christian Amateur Athletic Association could do.

That requires me to follow the principle to its logical conclusion. What if someone forms a North American Straight Amateur Athletic Association, or a North American White Amateur Athletic Association? As we used to say back in Arkansas, same difference. Anyone joining such an association is very publically agreeing with the principle of exclusion. That allows the rest of us to make up our minds about them. The power of popular sanction is the way to deal with such cases, without resort to the force of law.

Comments

[Jasonb84]

It's legal in the USA to discriminate against gay people in federal law, so why can't a gay softball club discriminate against heterosexual people. Fair is fair.

[Ken Blanchard]

Jason: You need to be clearer about your first point.

[Jasonb84]

Ken Blanchard, there is always going to be gays and lesbians discriminated against so to even things up they should be able to discriminate against heterosexuals. The USA supreme court has ruled in favor of heterosexual people such as banning gays from the boy scouts. I could go on and on.

[Jasonb84]

Ken Blanchard, also part of the problem is that the supreme court has turned political when it should be totally 100% separate from the government. The general public should be able to vote and nominate for the supreme court judges, and there should be a time limit on how long they can serve as a supreme court judge.

[Peter]

Hi Ken and Jason,

Jason: Actually, not only does federal law NOT prohibit anti-gay discrimination, it actually REQUIRES discriminating against gays.

Ken: I agree that this decision comports with the U.S. Supreme Court's ruling in the Boy Scouts case, although I disagree with the majority's opinion in that case.

There is little doubt that NAGAAA's expressive association would be severely diluted if a majority of its members were heterosexual.

However, I believe the Boy Scouts case is more analogous to the Court's 1984 ruling in Roberts v. United States Jaycees, which held that the Jaycees could not limit membership to men. The Court held that large, generally non-exclusive groups were not exempt from anti-bias laws unless admitting a member would violate the group's fundamental purpose.

Obviously the Ku Klux Klan would not be required to admit black members. I know of no one who would argue that what brings the Boy Scouts together is a shared ideology of Heterosexual Supremacy.

[Stan Gibilisco]

"Ken Blanchard, there is always going to be gays and lesbians discriminated against so to even things up they should be able to discriminate against heterosexuals."

Oh, terrific! Spread the hate around. Tit-for-tat. An eye for an eye. That's what the Good Book says. It's worked great in the Middle east for at least four thousand years.

[duggersd]

Jason, there will always be gays discriminatd against AND there will always be straights discriminated against. Black people will be discriminated against as will White people. I was told one time it would do me no good to apply for a job as they wanted people of color to apply for their equal opportunity "quotas". The real question is whether people are allowed to choose who they want to be associated with. I have no problem with a group wanting to be a gay softball association and having bi-laws that determines who can and cannot be on a team. But the door swings both ways.

[Jimi]

A "Gay" Softball League that permits Hetro's? Then it is not a "Gay" Softball League is it?

The solution is clear....all Non-Gays must be Red Shirted, just like in College Football, and a Hetrosexual handicapping system must be implemented. No "Ringers" either...Pun Intended!

The funny part about this is that it appears to me that the Homosexual community is admitting an inequiality in ability, whether it be physical, mental, or emotional. That seems to defeat what they have been going on and on about over the last twenty years.

Wake me up when these people actually have something important to argue about.

[duggersd]

Another type of discrimination and what happens when someone does something about it. I believe this is an example of the law of unintended consequences.
http://www.nytimes.com/2011/11/19/sports/boys-swimming-on-girls-teams-find-success-then-draw-ire.html?_r=1&ref=karencrouse&pagewanted=all