03-26-12 Council Agenda & Packet

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association,"which protects "choices to enter into and maintain certain intimate human relationships [without]undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Id. at 617. The types of relationships protected are those akin to;marriage and family relationships. See, e.g., City of Dallas v. Stanglin, 490 U.S. 19 (1989) (dance hall patrons not engaged in the sort of intimate human relationships contemplated by Roberts;no constitutionally protected right to "social association"of this sort),Klupt v. City of Chicago,No. 88 C 7528, 1989 U.S. Dist. LEXIS 3631 (N.D. Ill. April 3, 1989) (relationships with co-workers not the type of protected intimate human relationships considered in Roberts). A If the relationships among dance hall patrons and among co-workers are not protected "intimate associations,"there can be no question that the relationships between private employers and their employees and private landlords and their tenants also fall outside the protected category of"intimate associations." See also, Roberts, 468 U.S. at 620 ("[t]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.');Hyman v. City of Louisville, 131 F. Supp.2d 528, 543 (W.D. KY 2001),set aside on other grounds, 53 Fed. Appx. 740 (6th Cir. 2002) (relationship between an employer and employees not an intimate association deserving constitutional protection). 2. Landlords and employers cannot demonstrate that their businesses are expressive association. The second type of"freedom of association right"is the"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." Roberts, 468 U.S. at 618. This is otherwise known as "expressive association." See Boy Scouts ofAmerica v. Dale, 530 U.S. 640, 648 (2000) (Boy Scouts of America is an "expressive association"one purpose of which is to inculcate youth with values of being"morally straight"and"clean.") "The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression,whether it be public or private."Id. Private employers and landlords cannot demonstrate that their they are in the business of "engagfing] in expression"that would be suppressed or otherwise negatively impacted if they were prevented from discriminating against GLBT persons. Simply put,unlike the Boy Scouts in Dale, it is not a principal mission of private employers and landlords to profess and inculcate specific values in their employees or tenants—or to convey any other particular social, moral, religious, or political message. To the contrary, private employers and landlords are in the business of making money—not the business of making moral, social,political, or religious statements about GLBT persons or anyone else. See New York State Club Association v City of New York, 487 U.S. 1 (1988) (most private clubs with over 400 members were not created for, and do not regularly engage in, expressive activities deserving constitutional protection). Moreover, even if"invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, . . . it has never been accorded affirmative constitutional protections." Hishon v King&Spaulding, 467 U.S. 69, 78 (1984). 3