FIRST AMENDMENT PERMITS MUSLIMS TO EXCLUDE WOMEN

Timothy M. Burke, Manley Burke, tburke@manleyburke.com

The Nation of Islam held a “Men’s Meeting on Black on Black Crime, Violence and Drugs in Communities of Color” in the City of Boston-owned McCormick Center. Louis Farrakhan was the principal speaker. Women were barred from attending. One of the women prohibited from attending the meeting filed a complaint with the Massachusetts Commission Against Discrimination. The complainant argued that the McCormick Center was a place of public accommodation and women could not legally be excluded.

The Massachusetts Supreme Court disagreed.¹  The court noted that the separation of sexes is part of the belief system of the Nation of Islam’s religious practices. Relying on two previous U.S. Supreme Court cases,² the Massachusetts Court recognized that “intrusion into the internal structure or affairs of an association is one way in which government action may unconstitutionally burden this freedom.” According to the Court “if the forced inclusion of an unwanted person affects in a significant way the group’s ability to advocate  public or private viewpoints,  it is in violation of the First Amendment.” The Court recognized that “to be afforded First Amendment protection, there is no requirement that an association exists for the particular purpose of disseminating a specific message … it must merely engage in expressive activity that would be impaired by the unwanted inclusion.”

There are contrary cases, as the court noted. For example, the Massachusetts Supreme Court had previously ruled that a rod and gun club must admit female members because its policy of admitting any man over the age of 21 indicated a “total absence of genuine selectivity in membership”  and that, therefore, the “purportedly private club was, in fact, a place of public accommodation.” ³

As has been discussed in previous issues of Fraternal Law (January 2001 for example), fraternities may avail themselves of protection of the First Amendment, at least at public institutions, under both the theory that they are intimate associations and that they are expressive associations. The Massachusetts Supreme Court found that the Nation of Islam was an expressive association and, therefore, had little apparent difficulty in finding that it could exclude females from a male-only meeting.

¹ Donaldson v. Farrakhan, 436 Mass. 94, 762 N.E.2d 835 (2002)

² Boy Scouts of America v. Dale, 530 U.S 640 (2000) and Roberts v. United States Jaycees, 468 lJ S 609 (1984)

³ Concord Rod & Gun Club, Inc. v. Massachusetts Commission Against Discrimination, 402 Mass. 716 (1988)