Expert: Michael Troy - 9/14/2004

Question
Hi,

Is it legal for certain organizations and institutions to discriminate against people based on their gender, sexual orientation, race etc?
For instance, I read the Boy Scouts of America has policies which prohibit gays and atheists from being in leadership positions. Isn't this unconstitutional?   Could it be challenged in a court of law?  Thanks.

Answer
Hi Lisa,

Race sex and certain other forms of discrimination are illegal for employers or places of public accommodation  under federal law (discrimination based on sexual preference/orientation is legal under federal but illegal under many State laws).  This has nothing to do with the Constitution, it is based on a statute passed in 1964.

However, private organizations may discriminate on whatever basis they like for members.  Not only is this legal, it is protected by the Constitution's right of association.  Private citizens have the right to associate or not associate in personal settings with whomever they want.

The Boy Scouts were challenged in court on this a few years ago and won.

I hope this helps!
- Mike