Procedural Posture
A Virginia district court heard the case between the Gay Alliance of Students and various members of the administration of Virginia Commonwealth University. The district court ruled for and against both parties on different points of law and both parties appealed to the Court of Appeals for the 4th Circuit.
Facts
The Gay Alliance of Students was founded in 1974 to support the University’s homosexual and bisexual community and promote gay civil rights. The Alliance applied to the Office of the Dean of Student Affairs for registration as a student organisation. Registered student organisations received certain benefits: they were listed in a student activity directory; had access to university consultation services on financial management, budget preparation, and financial records; had access to University buildings for meetings and activities; enjoyed use of the campus newspaper, radio station, and bulletin boards for advertising; and were eligible to apply for funding from the University. The Alliance’s application was timely and met all procedural requirements. Nonetheless, it was not handled in the usual manner. The Vice President for Student Affairs forwarded the application to the Board of Visitors, the University’s governing body. The Board denied the Alliance’s application and provided no reasons.
Issue
Whether the University’s denial of registration to an LGBT student group was a violation of the right to freedom of expression under the Constitution.
Domestic Law
Constitution of the United States, 1st Amendment (freedom of speech, of the press, and the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”); 14th Amendment, Section 1 (Equal Protection).
Bates v. City of Little Rock, United States Supreme Court, 1960 (holding that “subtle governmental interference”, for example in student organisation policies at State universities, were capable of violating the 1st Amendment).
Brandenburg v. Ohio, United States Supreme Court, 1969 (holding that restricting the fundamental right of association was constitutional if there was an “incitement to imminent lawless action”).
Healy v. James, United States Supreme Court, 1972 (holding that “the Constitution’s protection is not limited to direct interference with fundamental rights” and that advocacy is always afforded full protection under the 1st Amendment).
National Socialist White People’s Party v. Ringers, United States Court of Appeals for the 4th Circuit, 1973 (holding that, when a State provided services or facilities to a group, such accommodation did not indicate the government’s ideological approval of the group or its activities).
Police Dept. Of the City of Chicago v. Mosley, United States Supreme Court, 1972 (holding that the government could deny equal protection so long as the difference in treatment was “tailored to serve a substantial governmental interest”).
Tinker v. Des Moines Independent Community School District, United States Supreme Court, 1969 (holding that public schools could regulate any activity that “materially and substantially disrupts the work and discipline of the school”).
Reasoning of the Court
The Alliance argued that the University violated the freedom of association rights guaranteed by the 1st Amendment to the United States Constitution.
The Court agreed. The Court cited the decision in Healy v. James, which held that “the Constitution’s protection is not limited to direct interference with fundamental rights”. The Court in Bates v. City of Little Rock also held that this broader protection of rights could be violated by “subtle governmental interference” (not just by a “heavy-handed frontal attack”). This constitutional interpretation of the 1st Amendment led the Court to rule that the University’s actions infringed on the Alliance’s associational rights. The University’s refusal to register the Alliance hindered its efforts to recruit new members and denied to the Alliance the enjoyment of the University’s services that other registered student organisations were afforded.
The Court acknowledged that the University’s constitutional violation could have been legal if the University had legitimate justifications. Though the University presented justifications, the Court found that they did not overcome the 1st Amendment violation. First, the University argued that registering the Alliance would increase the number of students in the organisation. According to the Court, this argument was premised on the belief that registering the Alliance would indicate the University’s approval of the Alliance’s aims and objectives; and that such approval would encourage students to join the group who otherwise would have no interest in doing so.
The Court rejected this justification on two grounds. First, it noted that many registered student groups at the University expressed political and social aims and objectives. These groups existed even though the University had made no indication of ideological approval and it could not therefore use this argument as a justification. The Court’s finding was supported by the testimony of a University administrator, that “the registration and recognition of an organization [did] not, in any sense, carry with it approval or endorsement of the organization’s aims”. Second, the court in National Socialist White People’s Party v. Ringers had held that, even when the government was forced to provide recognition or facilities to groups with discriminatory membership policies, “state approval or support of those policies is not thereby forthcoming”. The Court concluded that the Ringers decision precluded the University from rejecting the Alliance’s application on grounds of ideological approval. Third, the Court held that if the University’s recognition of the Alliance encouraged membership, such encouragement was consistent with the 1st Amendment’s guarantee of association rights and, therefore, was not grounds for denying registration of a student group.
Next, the Court dealt with the University’s argument that recognising the Alliance would have adverse consequences on some students. The Court held that this justification failed under the 1st Amendment as well. It stated: “the very essence of the First Amendment is that each individual makes his own decision as to whether joining an organization would be harmful to him”. Furthermore, the court in Healy had held that a public university or college “may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent”.
Finally, the University argued that as “a matter of logic, the existence of the Alliance as a recognised campus organization would increase the opportunity for homosexual contacts”. The Court recognised two possible interpretations of the phrase “homosexual contacts” and rejected the legitimacy of both. First, if the phrase “homosexual contacts” simply referred to “contacts” in which homosexuals discussed their common problems, the University’s rejection amounted to an unconstitutional restriction of the Alliance’s fundamental rights. The court in Bradenburg v. Ohio stated that a restriction on the fundamental right of freedom of association was constitutional only if there was an “incitement to imminent lawless action”. The University provided no evidence of incitement to imminent lawless action, and, therefore, failed to justify its rejection of the Alliance.
“Homosexual contacts” might also refer to sexual activity between students of the same sex. This interpretation had implications for the Alliance because Virginia law criminalised anal and oral sex. The Court cited Tinker v. Des Moines Independent Community School District., which held that public schools like the University may permissibly regulate any conduct that “materially and substantially disrupt(s) the work and discipline of the school.” Finding that illegal same-sex activity fell within the ruling in Tinker, the Court held that the University could regulate homosexual activity. However, the Court found no evidence that Alliance members engaged in illegal sexual practices.
The Court again cited Healy: “the critical line for First Amendment purposes must be drawn between advocacy, which is entitled to full protection, and action, which is not”. Despite the illegality of same-sex sexual activity, the Court reasoned that the Alliance’s purpose involved only advocacy, which was protected by the 1st Amendment. The Court concluded that “the suppression of associational rights because the opportunity for homosexual contacts is increased constitutes prohibited overbreadth”. For the same reasons, the Court rejected the justification that recognising the Alliance would have attracted new homosexual students to the Alliance. Highlighting the distinction between advocacy and action, the Court noted that “Virginia law does not make it a crime to be a homosexual”.
The Court also held that the Alliance’s members were denied equal protection of the laws under the 14th Amendment. The Court cited the case of Police Dept. of the City of Chicago v. Mosely where it was held that the government could deny equal protection so long as discrimination was “tailored to serve a substantial governmental interest”. The University’s denial was neither tailored properly nor did it serve a substantial governmental interest.
The Court held that, while the University recognised student groups and conferred privileges upon them, the University was required to recognise the Alliance.
Postscript
When this case was heard, the State of Virginia criminalised consensual anal and oral sex, regardless of the sex of the partners. (VA Code Ann. Section 18.2-361.) To the extent that the relevant statute covers solicitation of public sex acts, it has been held to survive the United States Supreme Court’s decision in Lawrence v. Texas. See Singson v. Commonwealth, Virginia Court of Appeals, 2005.
In re Futyu Hostel, Tokyo High Court, Civil 4th Division, Japan (16 September 1997)
Procedural Posture
An LGBT group called OCCUR was denied permission to stay in a government-run youth hostel by the Tokyo Educational Committee. OCCUR appealed the decision. The Tokyo District Court reversed the decision of the Committee, which then appealed to the High Court.
Facts
OCCUR, an LGBT group composed of young adults, stayed at Seinen no Ie in Futyu (a “Youth Hostel” sometimes referred to as “Fuchu Youth Hostel”) in February 1999. The local government of Tokyo owned the hostel, pursuant to the Tokyo Seinen No Ie (Youth House) Act, Article 8 (1)(2). The hostel did not charge individuals and groups who used its facilities. OCCUR accused the hostel’s management of mishandling the homophobic behaviour of other groups who were staying at the hostel at the same time as OCCUR.
After several meetings between OCCUR and the management, the hostel declined OCCUR’s application to stay overnight at the hostel again, pending a judgment by the Tokyo Educational Committee. The Committee denied OCCUR overnight stays at the hostel because sexual activity might occur in rooms shared by homosexuals. The Committee stated that it would also prevent opposite-sex heterosexuals from sharing rooms for the same reason. The Committee reasoned that the possibility of sexual activity violated the goal of the hostel, which was to facilitate the healthy development of Japanese youth. The Committee allowed OCCUR to use its facilities during the day.
Issue
Whether the government could deny an LGBT youth group permission to stay at a student hostel.
Domestic Law
Constitution of Japan, Article 14 (equality and non-discrimination), Article 21(freedom of association and assembly), and Article 26 (right to education).
Local Autonomy Act, Articles 244(2) and 244(3).
Tokyo Seinen No Ie (Youth House) Act, Article 8 (1) (2).
Reasoning of the Court
The plaintiffs raised a number of issues. They argued that statements by the manager of the Futyu Hostel had insulted OCCUR’s members and amounted to unlawful defamation. These statements suggested that Japanese society did not support the activities and beliefs of OCCUR. The statements implied that homosexuality had a negative impact on young people and that gay men who shared a room would have sexual contact. Their main argument, however, was that the Educational Committee had contravened the constitutional rights of OCCUR’s members. By prohibiting OCCUR’s members from staying at the hostel, the Committee had violated the rights of association and education. The plaintiffs also argued that the Committee violated OCCUR’s rights under the Local Autonomy Act.
The Committee responded that the statements by the hostel’s manager did not amount to unlawful defamation because they were made during a private conversation. There was no degradation of OCCUR’s social reputation and therefore, defamation had not occurred.
The Committee maintained that the hostel could legally prevent OCCUR from staying overnight. The hostel was founded with the goal of facilitating the healthy development of youth. Many of the hostel’s visitors were minors who, according to the Committee, were immature and impressionable. Exposure to sexual activity, regardless of the sex and sexual orientation of the parties involved, would compromise the students’ healthy development. Discrimination did not occur because male and female heterosexuals were also not permitted to share rooms.
The Tokyo High Court agreed with the Tokyo District Court and ruled in favour of OCCUR but rejected the claim of defamation. The High Court found that it was unlawful for the hostel not to accept OCCUR’s application, despite the Committee’s authority to decide the issue. The Court ruled that the hostel should have accepted the application and waited for the Committee to issue its decision. Despite rejecting the defamation claim, the Court held that the Committee’s decision was unlawful for a number of reasons.
First, the Court rejected the claim that sexual activity had an inherently negative effect on youth who witnessed or took part in such activity. In practice, furthermore, sexual activity would occur rarely if at all because of the hostel’s dormitory-style rooms; neither heterosexuals nor homosexuals would be likely to engage in sexual conduct in view of other people. But the Court did recognise that the hostel had the right take measures to restrict sexual activity on its premises.
The Court also ruled in favour of OCCUR on constitutional and statutory grounds. Articles 21 and 26 of the Constitution guaranteed freedom of assembly and association and the right to an equal education. Based on these provisions, OCCUR had the right to use the hostel. Additionally, the Local Autonomy Act limited the government’s ability to deny access to public facilities, such as those governed by the Tokyo Seinen No Ie (Youth House) Act. Based on these constitutional and statutory provisions, the hostel could not prevent OCCUR members from using its facilities. While heterosexuals could be accommodated in sex-segregated housing, homosexuals could not. The hostel’s sexual orientation separation policy was therefore a violation of both the Local Autonomy Act and the Constitution. The Court did not clarify whether housing OCCUR’s members in single rooms would have survived constitutional scrutiny (assuming the hostel had enough single rooms to accommodate OCCUR’s members).
Furthermore, the Court dismissed the notion that the possibility of same-sex sexual activity provided a justification for prohibiting homosexuals from staying in the same room. Assuming that the hostel had a legitimate interest in limiting sexual activity, the Court held that the mere possibility of sexual activity would not justify the exclusion of OCCUR members. The Court stated: “[t]here needs to be a concrete and substantial possibility of sexual conduct. This applies the same to heterosexuals when the facility does not have enough room to separate them.” The Committee had provided no evidence that extensive sexual activity was likely to occur. The Court observed that, even had it found a high risk of sexual activity, the hostel would still have been required to grant OCCUR access while taking measures to limit its occurrence.
The Court noted that the sex-segregated housing policy was intended to curb sexual activity. This policy merely reduced the likelihood that guests would have sex with each other. However it had limited effect. The Court stated that to apply the policy “systematically to homosexuals to minimise the already low possibility of sexual conduct and completely preclude homosexuals from using the Youth Hostel is an undue restriction on the homosexual’s right to use public facilities”. Although the hostel had permitted OCCUR to use its facilities during the day, the Court held that it was: “a core feature of the Youth House to be able to use it overnight, and this cannot be regarded as a minor benefit. Homosexuals have a right to use the Youth House and benefit from its features.”
The Court ruled in favour of OCCUR on all claims except that of defamation. It awarded OCCUR compensatory and punitive damages and attorney’s fees.
Gay Alliance of Students v. Matthews, United States Court of Appeals for the 4th Circuit (full text of judgment, PDF)
