Sunday, June 5, 2011

First Amendment Right to Gay Softball

A federal court in Washington decided an interesting case last week – a case arising from the 2008 Gay Softball World Series. The North American Gay Amateur Athletic Alliance (NAGAAA) suspended the plaintiffs, three bisexual players, because the league found them not gay enough. Each team is allowed two heterosexuals, but the plaintiffs’ team allegedly exceeded this number.

The plaintiffs filed suit under Washington’s Law Against Discrimination (WLAD) which prohibits discrimination on the basis of actual or perceived sexual orientation in “public accommodations.” The Court found that the gay softball league was a public accommodation. But, the league was also an expressive association with First Amendment rights.

The league “[p]romotes the idea of athletic competition and good physical health in support of the gay lifestyle” and emphasizes “participation of members of the gay, lesbian, bisexual and transgender (GLBT) community.” As the Court noted:
The First Amendment guarantees the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
The Court quoted and relied on Boy Scouts of Am. v. Dale, 530 U .S. 640 (U.S. 2000). The irony here, being that Dale held that the Boy Scouts could exclude homosexuals, and it is now being used to protect a gay group’s right to exclude heterosexuals (or possibly bisexuals… the NAGAAA merely found the plaintiffs “non-gay”).

That is not the end of the analysis though. A state can override freedom of expression for a compelling state interest, unrelated to suppression of ideas, that cannot be achieved by less restrictive means. The Court holds that the plaintiffs “failed to argue that there is a compelling state interest in allowing heterosexuals to play gay softball.” Summary judgment for the defendants.

Citation: Apilado v. N. Am. Amateur Athletic Alliance, 2011 WL 2148816 (W.D. Wash. May 31, 2011).

Update 6/6/2011: Something I should have made clearer in the original post is that the defendants were granted summary judgment on the plaintiffs' request to enjoin the league from enforcing its policy. The Court also denied plaintiffs' motion for summary judgment on the unlawful discrimination claim.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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