Being FAIR to Religion: Rumsfeld v. FAIR’s Impact on the Associational Rights of Religious Organizations

by STUART McPHAIL

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR) garnered much political attention because of the issue underlying the case: whether “don’t ask, don’t tell” is a sound policy.1 However, that question was not before the Supreme Court. The Court considered only whether law schools’ protests against the policy—refusing military recruiters access to students—were constitutionally protected speech.2 The Court was not sympathetic; in ruling against FAIR, a consortium of law schools, it limited a protection that it had greatly expanded only six years earlier: the right to expressive association.
The effects of this limitation are yet to be seen, but will likely come as a disappointment to libertarians who saw great promise in the broad association rights set forth in Boy Scouts of America v. Dale.4 Interestingly, the impact of FAIR may be felt most by religious organizations—groups that have traditionally had their own associational protections, but which today may rely only on the right of expressive association. The irony of this is that FAIR, a case noted for its defense of an anti-homosexual policy, may have its greatest impact on religious organizations that seek to keep homosexuals out.

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