Legal Issues with Membership Policies
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Freemasons and other organizations have policies that determine who can become a member. However, sometimes these policies can be found to violate provisions of the U.S. or State Constitutions, and sometimes Congress or a State government can adopt a law that requires organizations’ membership policies to change. When a change comes as the result of Constitutional challenge, someone has to start the process by filing a lawsuit. When it comes as the result of a law, a government agency, or in some cases an individual, can start the process either in an administrative agency or in a court, federal or state. Another way in which change can come about, and has in the case of other associations, is if some members of the group violate the group’s membership policies, and the group then takes disciplinary action against them, which in turn is challenged in the courts.
Several questions are reasonable for Masons who think about our membership policies:
1. Is it likely that anyone will file a lawsuit to seek to force Freemasons to change our membership policies in any way? Is it likely that a Masonic group would violate current membership policies, possibly by admitting women, and if so, would a Grand Lodge take action against them, and if so, would those against whom the disciplinary action was taken challenge it in court?
2. Are there state or federal laws that could be relied upon to use in challenging the membership policies of Freemasons?
3. If Freemasons’ membership policies were challenged, would provisions of the U.S. or State constitutions support the challenge, or would they support retention of these membership policies?
It might be useful to discuss these questions in reverse order.
Freedom of Association: (1) To express a viewpoint, or (2) An intimate organization
Some people rely, without more, on “freedom of association.” They feel this would automatically guarantee that Freemasons membership policies would be upheld in any lawsuit, because Americans have the freedom to associate with anyone they wish, and therefore can limit membership in Masonic lodges in any way they wish. This is incorrect.
The Supreme Court has said:
“Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.” Roberts v. United States Jaycees, 468 U.S. 609 (1984)
This is very important. In some cases, a group has a message, and those who oppose that message can be kept out. In other cases, a group is involved in “certain intimate human relationships” and thus can restrict membership.
Is Freemasonry in either of these categories?
The most recent case about “expressive association” is Boy Scouts of America et al. v. Dale, decided in June 2000. The Supreme Court decided that the Boy Scouts had a message that included the fact that in their opinion homosexuality was not a proper. “Given that the Boy Scouts engages in expressive activity, we must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints. This inquiry necessarily requires us first to explore, to a limited extent, the nature of the Boy Scouts’ view of homosexuality.” The Court ruled that the forced inclusion of a homosexual would affect the Boy Scouts’ ability to advocate its views against homosexuality.
Would this apply to Freemasonry? Does Freemasonry advocate that women are not proper, and thus that inclusion of women in Masonic lodges would prevent the organization from advocating its views against women?
The most recent Supreme Court decision on the concept of an intimate organization, or one that is truly private, is New York State Club Assn. v. New York City, 487 U.S. 1 (1988). In that case, New York City’s Human Rights Law forbade discrimination based on race, creed, sex, and other grounds by any place of public accommodation, resort or amusement, but exempted any institution, club or place of accommodation which is in its nature distinctly private. It would not be considered private if it had more than 400 members or under other circumstances.
Factors in considering whether an organization is truly “private” for legal reasons, to withstand any legal challenge based on “freedom of association” for private organizations, include size, purpose, policies, selectivity, congeniality, and other characteristics.