How Gay Do You Have to Be to Play Gay Softball?

 

Three bisexual men who were disqualified from the 2008 Gay Softball World Series for not being gay enough are citing a violation of anti-discrimination laws in a lawsuit they’ve filed against the North American Gay Amateur Athletic Association.

The men, members of a San Francisco softball team, say they were questioned in front of a room full of strangers about their sexual preferences after a protest was lodged alleging their team had violated a rule that limited to two the number of heterosexuals on any team.

The three men, who are bisexual, say the questioning was intrusive and allege in the lawsuit that the event’s sponsor and its rule violate state anti-discrimination laws.

However, U.S. District Judge John Coughenour found that the North American Gay Amateur Athletic Association, which sponsors the yearly event, can keep its rule. The First Amendment guarantees of freedom of expression and association allow organizations like the softball association to limit membership to individuals with like-minded beliefs in order to promote a broader agenda — in this case, ensuring gay athletes have a safe and accepting community in which to play, he ruled.

In my opinion, the judge’s ruling that the Gay Softball World Series is entitled to have whomever they want play in their league is correct.  This is merely the other side of the coin of the cases involving the Irish parade in Boston and the Boy Scouts.  In these cases, gays sued to be included in the parade and as scoutmasters in the Boy Scouts.  The Supreme Court, however, found that the right of association and of speech on the part of the groups allowed them to choose to include or exclude members as they wished.  If the government was doing the excluding, that would be a different matter.  But if private groups want to discriminate, for good or ill, that is up to them — we have a constitutional right, the Court says, to associate with whom we want.

The Court’s ruling makes eminent sense to me.  We enter into private groups because of some shared interest or affinity.  If groups were forced by the state to admit everyone, they would lose their essential character and there would be little point to forming them.  Gilbert & Sullivan (I believe) put it best: “if everyone is somebody, then no one’s anybody.”

There are 24 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Profile Photo Member
    @CharlesMark

    If the National League can ban the Designated Hitter why shouldnt the Gay League be entitled to ban the Switch-Hitter?

    • #1
  2. Profile Photo Member
    @JackRichman

    I agree, John. But don’t you find the “gayer than thou” attitude of the North American Gay Amateur Athletic Association off-putting?

    • #2
  3. Profile Photo Contributor
    @RichardEpstein

    John has of course expressed well our joint libertarian instincts on this question. But it should be equally clear that the decision in the softball case was a split verdict, for while the claims for expression seemed to win out on team membership, they seemed to lose out to the anti-discrimination laws that deal with the use of public accommodations. The line for this distinction is obscure but tenacious. Those matters that are expressive are thought to be protected by the first amendment guarantees to freedom of speech, onto which were engrafted notions of freedom of association. But letting folks in to various public places is less expressive and thus fall into some undefined category of action that is governed by a different set of rules.

    That split is in general unfortunate. There is little to be gained from forced association in most ordinary areas of life. If there is one thing clear about the softball league it is that its members had a clear sense of what was and what was not the environment in which they wanted to operate. Even if I would not want to imitate their preferences in my own life, I think that I am bound to respect the way in which they order their lives.

    • #3
  4. Profile Photo Contributor
    @RichardEpstein

    There is a notable exception to the freedom of association rule in the case of common carriers, i.e. those parties that offer the only way to get from one location to another. At that point there are no credible options to go to a given destination, so the costs of exclusion are far greater. At the same time sitting on a train is not an intimate type of association, so that the limitation on personal association is far weaker. The law has thus flipped over on that question since the first time the issue arose. But no ingenious use of the phrase common carrier can apply that term to the softball league. May they flourish. Likewise to all other leagues whose membership rules follow very different principles.

    • #4
  5. Profile Photo Member
    @cdor

    Live and let live. If these gays want to be bound by their own restrictions, let them be bound. They are getting awfully finicky for crying out loud. A bi-sexual is not gay? Who knew?

    • #5
  6. Profile Photo Member
    @JosephEagar

    Being bisexual, this makes me incensed. I’m glad the Court treats everyone the same way (my first thought was “what if the roles had been reversed?). The homosexual “community” (aka the gay left) has no legitimacy anymore. You know, I think I’ve met more people outside of it then inside–they they always think “oh, all non-heterosexual people must be like us! of course!”

    It doesn’t help the cause of non-heterosexuals when statements like “the homosexual fascist agenda” actually have truth to them, if you insert left after “homosexual.”

    • #6
  7. Profile Photo Member
    @CharlesMark

    It seems to me that there’s an interesting dichotomy at play.

    • #7
  8. Profile Photo Member
    @KCMulville

    I think it depends on their batting averages, don’t you think?

    • #8
  9. Profile Photo Member
    @MelFoil

    They should at least have to go to a home furnishings store and identify everything by name and color.

    • #9
  10. Profile Photo Contributor
    @PaulARahe

    What a hoot!

    • #10
  11. Profile Photo Member
    @JosephEagar
    etoiledunord: They should at least have to go to a home furnishings store and identify everything by name and color. · Jun 2 at 4:47pm

    See, that’s not a gay thing at all. But the oh-so-righteous “LGBT” gay left thinks it is. This is why I hate minority politics.

    • #11
  12. Profile Photo Member
    @VanceRichards

    “Gilbert & Sullivan (I believe) put it best: ‘if everyone is somebody, then no one’s anybody.'”

    I’d say if you can quote Gilbert & Sullivan musicals, they should probably let you play.

    • #12
  13. Profile Photo Member
    @Talleyrand

    What about the Queer Japanese Midgets in chain-mail armor, they are also oppressed.

    outstripp: Seems to me a simple throwing test would suffice. · Jun 2 at 10:08pm

    Let’s leave President Obama’s pissant efforts out of this debate.

    • #13
  14. Profile Photo Member
    @DanielSattelberger

    I had a post on the Member Feed on Candidate #1 for Most Ridiculous Lawsuit Ever. I think we’ve found Candidate #2.

    • #14
  15. Profile Photo Member
    @Britanicus
    Troy Senik: Agreed. If only you knew the soul-searing agony of not having been able to introduce a Law Talk segment with this question.

    Jun 2 at 7:05pm

    There’s still time! Besides, I’m sure you’ll see a case where a transgendered “girls” volleyball team is sued because they kicked out a member for not having the operation yet.

    • #15
  16. Profile Photo Member
    @Charlotte

    How Gay Do You Have to Be to Play Gay Softball?

    This just might be the best title of any blog post in history.

    • #16
  17. Profile Photo Contributor
    @TroySenik

    Agreed. If only you knew the soul-searing agony of not having been able to introduce a Law Talk segment with this question.

    Charlotte Reineck: “How Gay Do You Have to Be to Play Gay Softball?

    This just might be the best title of any blog post in history. · Jun 2 at 6:32pm

    • #17
  18. Profile Photo Member
    @

    [This comment has been redacted by an editor]

    • #18
  19. Profile Photo Member
    @LTRahe

    A very important issue here is whether the group itself gets to define what views it intends to express, and therefore whom to admit as a member, or whether the courts get to make that decision. This came up in Boy Scouts of America v. Dale, with the majority taking the former view. This is good, because otherwise a court could say: “While you claim that you are against X, we think that some of your literature suggests otherwise and that you are in fact not really against X; therefore, you must admit John Doe as a member pursuant to public accommodations law even though he espouses X.” So, absurd as it may seem, if the league decides that bisexuals interfere with its mission, it should have a right to exclude them.

    • #19
  20. Profile Photo Member
    @KCRob

    Is there some sort of objective measure of gayness? A fabulous index? Do they have some sort of calibrated gaydar set?

    When the plaintiffs were questioned about their preferences, did any of their questioners hit on them afterward?

    • #20
  21. Profile Photo Member
    @Palaeologus

    I think the court ruling is right, too. But… people voluntarily join this creepy league?

    Oh, you wanna play Bob? Sure. Here’s the protocol: we’ll have to get a ruling from the Rainbow Star Chamber. If you could write up a detailed brief summarizing your sexual history that’d be great. It’s softball, after all.

    • #21
  22. Profile Photo Member
    @anonacademic

    I’m just hoping the opinion cited the very important case of Jack v Owen (ie, the episode of Will & Grace when Jack has the Matt Damon character, a straight man, expelled from the gay choir. Like all episodes that ignore the title characters and focus on Jack and/or Karen, it’s hilarious).

    • #22
  23. Profile Photo Contributor
    @Midge
    KCRob: Is there some sort of objective measure of gayness? A fabulous index?

    Oddly enough, a Google search on the “fabulous index” resulted in no hits for a Fabulous Index as such (as opposed to indices described as “fabulous” incidentally).

    I’ve gotten used to pretty much any bizarre topic you can dream up resulting in at least a few Google hits.

    So color me surprised that there isn’t yet a Fabulous Index on this interweb thingy.

    • #23
  24. Profile Photo Member
    @outstripp

    Seems to me a simple throwing test would suffice.

    • #24

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.