Lesbian and Gay Rights Advocacy Groups

Do people have a right to form organizations for the purpose of ending discrimination based on sexual orientation?

Yes. Freedom of association is a right that flows from the guarantees of freedom of assembly and speech contained in the First Amendment to the United States Constitution and the guarantee of liberty assured by the Due Process Clause of the Fourteenth Amendment. Courts have specifically acknowledged that the right of freedom of association extends to lesbian and gay organizations.6

Do lesbian and gay organizations have the right to incorporate?

Yes. The legal benefits of incorporation should be available to gay organizations to the same extent they are available to any other organization.7 This principle should be recognized even in states with a sodomy law. When the Gay Activists Alliance sought to incorporate in 1972 in New York, that state had a sodomy law, and incorporation was initially rejected by the secretary of state on the grounds, among others, that "the purposes of the proposed corporation raised serious questions as to whether it may be formed to promote activities which are contrary to public policy and contrary to the penal laws of the State." 8 In overturning that denial, a New York court stated that "[i]t is well established that it is not unlawful for any individual or group of individuals to peaceably agitate for the repeal of any law."9

Can lesbian and gay organizations obtain federal tax-exempt and tax-deductible status?

Yes. In 1978 the Internal Revenue Service issued a ruling whereby gay organizations can obtain tax-exempt, tax-deductible status if they otherwise qualify under the tax laws.10 Since that time, the IRS has granted tax-exempt status to many gay groups around the country.

Do lesbian and gay organizations have a right to keep the names of their members confidential?

Under most circumstances, yes. The Supreme Court has held that where, because of community temper, disclosure of the names of members of an organization might adversely affect those members, the organization is not required to disclose its membership list even if a state or local law requires it or a governmental official demands it.11 Forcing disclosure under such circumstances violates the members' freedom of association.12 A lesbian or gay man who fears membership in a gay organization might become known to others might not join the organization. However, the Court has enunciated exceptions to this rule. If an organization seeks tax-exempt status, for example, it may have to divulge certain information on its sources of income. Moreover, an organization that actively participates in an election campaign may be required to reveal the names of at least its major contributors under either the federal or state election laws.13 Any gay organization faced with a demand for disclosure should seek legal advice, for these are difficult legal issues. Any organization that intends to support a particular candidate should, by all means, seek a lawyer's advice well before the campaign, so that it understands the implications of such activity.

Do lesbian and gay organizations have to reveal the names of persons who make financial contributions or pay dues to them?
Not usually. The Supreme Court has recognized that governmentally forced disclosure of contributors to organizations that espouse unpopular views can have a deterrent effect on the associational rights of the members of the organizations and has ruled that they cannot be forced to divulge such information. 14

Do members of a lesbian and gay organization have a right to refuse to reveal their association with the organization to the government and to prospective employers?

Usually, but the right is not absolute. The Supreme Court has held that while the Constitution generally protects an individual from being forced to disclose his associational relationships, disclosure may be required when there is a state interest sufficiently compelling to overcome the individual's right to associational privacy.15

Public school teachers face particularly difficult problems in this area. The Supreme Court has said that a public school teacher does not give up the right to freedom of speech, belief, or association by teaching in the public schools, but he or she does have an obligation of "frankness, candor, and cooperation" in answering questions by the employing board because a teacher's work in the classroom may be sensitive and may shape the attitudes of children and adolescents.16 In Acanfora v. Board of Education of Montgomery County,17 a federal court of appeals upheld the transfer of a gay teacher from classroom to administrative duties on the ground that he failed to reveal, on a questionnaire concerning his extracurricular activities, his participation in a gay student organization while in college. The court found that the teacher had misrepresented himself in response to a legitimate question.

Consultation with an attorney is advisable when trying to decide whether or not membership in a gay organization must be disclosed on an application form or in an interview. Furthermore, it is important to remember that a right not to disclose does not constitute a right to lie. False statements in response to official inquiries may give rise to civil liability, criminal penalties, or both.

Can lesbian and gay organizations receive government funds for conducting programs and projects?

There is no barrier in the law to such funding. A number of lesbian and gay organizations have received government grants to conduct AIDS-related prevention and education programs, for example. However, bias against such groups remains a potent obstacle in many, probably most, funding situations.