03-26-12 Council Agenda & Packet

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U.S. Dist. LEXIS 3631 (N.D. III. April 3, 1989)(relationships with co-workers not the type of protected intimate human relationships considered in Roberts). 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. 609 ("The 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), overruled on other grounds, 53 Fed. Appx. 740(6th Cir. 2002) (relationship between and employer and employees not an intimate association deserving constitutional protection). b. 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 of America 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. It would be extremely difficult, if not impossible, for the vast majority of private employers and landlords to demonstrate that their businesses normally"engage 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 normally not a principal mission of private employers and landlords to profess and inculcate specific values in their employees or tenants—ofto convey any other particular social, moral, religious, or political message. To the contrary, the purpose of private employers and landlords is to make money—not to make 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. I (198 8) (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).4 4 This exact same analysis would apply if employers or landlords brought a pure First Amendment Freedom of Association challenge without raising equal protection issues. 15