More on the Gay Athletic Group’s First Amendment Right to Limit the Number of Straight Players on a Team

I am very upset. Yes I am. Because I see a pattern of comparing unlike things. I see a comparison with a person’s skin color or belief in origin with something that factually through collective memory radically alters behavior. I’m not here to argue social science, but it is in the interest of fair government to recognize the behavior and mechanics of gender and sexual orientation. To not do so would be discriminatory. To compare the color of a person’s skin with the behavior and needs of gender or sexual orientation is biased... and that bias would be the judges in Washington State that I was alluding to. The way the legal finding is worded one could create a KKK club which would not be the same as the boyscouts or the gay softball team. I have no problem with who won... (I suppose) I have a problem with the blanket attempt to address difference uniformly when it is not in the interests of the people to do this. I guess what matters most is how they swing: Bisexual Men Sue Gay Softball League for Discrimination... and apparently lost.

As (Volokh) noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs’ motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series (“GSWS”) were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination (“WLAD”). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.
To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA’s decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648–59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.
Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA’s First Amendment rights under the Dale test could be conclusively decided. The Court now considers that final question: does NAGAAA’s interest in expressive association outweigh the state interest in eradicating discrimination? ...
In the previous Order, wherein the Court determined that NAGAAA was an expressive association, the Court did not find an explicit formulation of the message NAGAAA intended to express. Instead, the Court found that NAGAAA communicated a mission and a purpose through its literature that fell easily within the standards that the Supreme Court had set for an expressive association. Now, however, NAGAA has made its intended message explicit: ...

NAGAAA has chosen to send a message through the annual Gay Softball World Series that athletes can play competitive team sports ‘as openly gay, lesbian, and bisexual individuals,’ and to ‘demonstrate that there are such men and women.’ [Emphasis in original.]

The importance of this statement of NAGAAA’s expressive purpose is that it provides a basis for excluding not only straight players, but also “closeted” players who choose not to publicly identify as LGBT.
Plaintiffs argue that the insistence on openly LGBT members is a retroactive pretext for discrimination against players who chose not to identify as such. The Court disagrees. While the precise nature of sexual identity is a subject on which this Court declines to opine, it is safe to say that sexual orientation, unlike race or sex, is generally identifiable by private conduct or public expression. To determine a prospective member’s sexual orientation, NAGAAA could look at their private conduct or their public expression. Given that it was NAGAAA’s alleged examination of Plaintiffs’ private conduct that led to claims for invasion of privacy in this case, it is reasonable that an organization seeking to limit participation to gay athletes would require members to express whether or not they are gay athletes. Therefore, the Court accepts NAGAAA’s statement of its expressive purpose as presented.
To weigh NAGAAA’s interest in expressive association, the Court must examine evidence of the impact that admitting players who do not meet NAGAAA’s eligibility requirements would have on that expression. See Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987) (“In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes.”) As discussed above, the Court has already held that NAGAAA’s protected First Amendment rights would be burdened by forcing them to include an unlimited number of athletes who do not meet their membership rules.

The Commissioner of NAGAAA submitted a declaration explaining that the desire for exclusivity was born of the fact that many members of the LGBT community come from backgrounds where team sports have been environments of ridicule and humiliation. NAGAAA’s efforts to promote an athletic, competitive, sportsmanlike gay identity, with a unique set of values, in response to a particular need, are protected by the First Amendment. Forced inclusion of straight athletes would distract from and diminish those efforts.

There is additional evidence to support this conclusion. Chris Balton, the Assistant Commissioner of the Memphis league, testified that inclusion of straight players in that league resulted in the loss of a sense of community. Geoff da Silva, the Treasurer of NAGAAA in 2008 and the former commissioner of the NAGAAA member league for Toronto, testified that Rule 7.05 was implemented in response to problems that NAGAAA had in its formative years. At that time, participation was open to all and predominately straight teams were playing in and winning the GSWS. Da Silva testified that “this was because some local bars at the time were building teams purely to win, for self-promotion, and they did not care about the spirit of NAGAAA or the Gay Softball World Series.” Gary Carter, the Business Development Director for NAGAAA, testified that NAGAAA “allows members of the LGBT community to see that they can be out and open, and play sports.” Unlike Duarte, therefore, the evidence in this case demonstrates that admitting straight and closeted players would affect in a significant way the existing members’ ability to carry out their various purposes....
The next step for the Court is to examine the state interest in enforcing its public-accommodation laws. One disagreement between the parties is over the appropriate scope of relevant state interest: NAGAAA argues that the state has no particular interest in preventing discrimination against straight and closeted softball players, while Plaintiffs argue that the state is interested in eliminating all forms of discrimination, regardless of the particulars....
Roberts, Duarte, and Dale all support the thrust of NAGAAA’s argument: the state interests should be narrowly defined to a particular form of discrimination. Indeed, if state public-accommodation statutes truly prohibited discrimination against all groups and in any form, then freedom of association would be toothless. Plaintiffs have not shown, and the Court cannot find, any reason to believe that the state interest in eliminating NAGAAA’s exclusionary policies outweighs NAGAAA’s associational rights. Accordingly, the First Amendment protects NAGAAA’s membership policy from Washington’s public-accommodation laws...

So if the black people in my town make me feel intimidated then I would have a right to start a white only club? You would have to be very biased to deny that a white male did not ever experience the same variables that this gay group is describing. it sounds to me like they just opened a Pandora's box. The details of this sound like a lot of bullshit. Washington State is acting like Washington state again. I can't wait for this kind of argument to hit a Supreme court... and I guess that is my question. Will this be appealed?

Gay Athletic Group Has First Amendment Right to Limit the Number of Straight Players on a Team

fine... I don't want any gay people on my blog. for that matter... no feminists either. and don't go crying to Washington State or the commonwealth of Massachusetts or something left wing like that. YOU ARE NO LONGER ALLOWED!!!!

(The Blaze) — A gay men’s softball organization is going head-to-head with three former bi-sexual players who claim that the group unfairly disqualified them for not being “gay enough.”
This week, a federal judge ruled that the organization does, indeed, have the constitutional right to limit the number of heterosexual players on each team (currently, the group allows for two straight players on each team). That said, the judge also ruled that the three players in question may bring their discrimination claims to trial. The Seattle Times has more:

From Apilado v. North American Gay Amateur Athletic Alliance, 2011 WL 2148816 (W.D. Wash. May 31):

This case arises from the disqualification of a softball team from the 2008 Gay Softball World Series (GSWS). The event was operated by Defendant North American Gay Amateur Athletic Alliance (NAGAAA) and attended by Plaintiffs Steven Apilado, LaRon Charles, and Jon Russ. The Plaintiffs’ team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta league filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team.
Rule 7.05 states that “[a] maximum of two Heterosexual players are permitted on a GSWS roster.” Penalties for violation of this rule include permanent suspension of the heterosexual player, disqualification and forfeiture of the offending team’s games, one year’s suspension of the team’s manager, and a minimum $100 fine imposed against the team’s association. Under Softball Code Section 1.15, Gay means “having a predominant sexual interest in a member or members of the same sex and includes both gay men and lesbians.” Softball Code Section 1.18 defines heterosexual as “having a predominant sexual interest in a member or members of the opposite sex.”
The Softball Code also establishes a mechanism for enforcing rule 7.05: the protest hearing. Rule 8.04 states that a protest can be filed by the manager of the opposing team, an open division director, or an association’s commissioner. Rule 8.06 establishes the procedure for these hearings: a protest committee convenes, the protest committee chairperson begins the proceedings by explaining the procedures, the protesting party explains the basis for the protest and presents any available evidence, the protested party has an opportunity to rebut the argument, the protest committee may interview players, and the protest committee conducts a vote by secret ballot to determine the outcome.
D2 lost the championship game. When it was over, NAGAAA’s protest committee conducted a hearing. Upon conclusion of the hearing, the protest committee determined that Plaintiffs were “non-gay,” and, therefore, that D2 was not eligible to compete in GSWS. The protest committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that Plaintiffs be suspended from NAGAAA softball play for one year.
[The Court finds] that NAGAAA is a “public accommodation” under Washington’s Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60 et seq., and that NAGAAA unlawfully discriminated against Plaintiffs [in violation of this law] based on their actual or perceived sexual orientation ..., but that the First Amendment protects [NAGAAA’s] right to exclude those whose membership would negatively impact their expressive activity.... The first part of this Order [thus] holds that Defendant has a constitutional right to exclude anybody who does not share in its values....
The second part of the Order holds that Plaintiffs did not show a real and immediate threat of repeated harm [from the supposedly intrusive way in which the policy was applied –EV] because their injury resulted from the manner in which the written policy was applied, not from the language of the policy itself. [Text moved: The alleged events that led to Plaintiffs’ injuries — the protest committee asking personal and intrusive questions in front of approximately twenty-five delegates and observers, repeating votes until a verdict of “non-gay” was reached, and widely publicizing the verdict — cannot be directly traced to the written policy.] It did not appear to the Court that Plaintiffs were arguing that they were injured simply because NAGAAA adopted particular definitions of gay and straight, but rather because NAGAAA inquired into Plaintiffs’ sexual orientation in a way that was intrusive and disrespectful. Accordingly, the Court’s analysis is confined to the allegedly intrusive questioning, not the definitions of gay and straight.... Defendant could still be liable for its actions [in the questioning]. In a recent case, the Supreme Court looked to the activities of the Westboro Baptist Church, a virulently anti-gay group who display hateful signs at soldiers’ funerals. Snyder v. Phelps. The Court concluded that the First amendment does not protect all speech from claims of intentional infliction of emotional distress or invasion of privacy. Whether or not Defendant’s treatment of Plaintiffs at the protest hearing is deserving of First Amendment protection remains to be seen....

via volokh.com

The North American Gay Amateur Athletic Alliance oversees gay softball leagues in dozens of U.S. cities and runs an annual tournament called the Gay Softball World Series. Three men claim in a lawsuit filed last year that their team’s second-place finish in the 2008 tournament in Washington state was nullified because they are bisexual, not gay, and thus their team exceeded the limit of two non-gay players.
[U.S. District Judge John] Coughenour did say that questions remain about the way the softball association applied its rule, including whether the questions asked about the men’s sexuality at a protest hearing were unnecessarily intrusive. Therefore, the case can proceed toward a trial set for Aug. 1, he said.

The men say that they were unfairly questioned about their sexuality in front of an audience and that the group listening to their responses held a vote to determine whether or not they were actually gay. The Daily Mail continues:
The men’s lawsuit alleges that they were individually questioned about their sexuality – in a room containing as many as 25 people. Panel members then voted on whether they men were gay or not.

via weaselzippers.us

don't expect the progressives to apply these things even handed.

Here, queer and in denial

the real Apartheid was in the Gay Community this year:
(1) The largest Gay Pride parade in the world disinvited the Israeli contingent because of pressure from increasingly violent anti-Israel demonstrators in Spain
(2) A bisexual softball team has decided that they were discriminated against by the North American Gay Amateur Athletic Association (NAGAAA) because they had too many heteros on their team.
    The lawsuit, filed in a federal district court, alleges that the North American Gay Amateur Athletic Association (NAGAAA) violates the Washington State law against sexual orientation discrimination in public accommodations. It says the group did so by imposing a rule that teams participating in the 2008 Gay Softball World Series could have no more than two heterosexuals per team.
(3) Perez Hilton.

the first part of respecting difference is respecting difference.  acknowledging others comes with acknowledging different needs.  Has sex without marriage for heterosexuals become any safer today then it was thousands of years ago?  Do you support the bigotry of those against marriage that protects the identity and purpose of women and men and the dignity that comes from difference?  Should those that labor for children not be recognized by the state? 

I can't understand these people either.

Not only does this group try to equate Israel with apartheid, which is odious in and of itself, but they are either grossly intellectually dishonest or they are in abject denial. They are embracing a culture that goes against our very core principles as human beings. They are embracing a culture that considers women as chattel and non-human. They want to be “inclusive,” and defend a country that kills people—for being gay. They are marching to show pride so that gay people in the West don’t have to stay in the closet longer than desired. Yet, they are supporting Palestine, where they would need to stay in a steel-encased panic room, forever.
They are vilifying the one country in the Middle East that truly embraces diversity by believing in freedom: Israel. The Judeo-Christian ethic has done the most good in the World. Always has and always will. The Judeo-Christian ideals of freedom and respect for the individual rights of men—and women, gay or straight, Jewish, Christian, Muslim, Buddhist—all are welcome in Israel.
In Palestine? Not so much.

Do these people hate themselves?
Read the whole thing.

via israelmatzav.blogspot.com

Posted via email from noahdavidsimon's posterous

Bisexual Men Sue Gay Softball League for Discrimination [UPDATED]

Most Lesbians are not gay [IMHOP]. 
They don't like women... they hate men   ....If the ladies really want a woman's softball team they should ask for one instead of hiding behind the gay rhetoric.  Certainly major league baseball for a very good reason is gender exclusive

A bisexual softball team has decided that they were discriminated against by the North American Gay Amateur Athletic Association (NAGAAA) because they had too many heteros on their team.

The lawsuit, filed in a federal district court, alleges that the North American Gay Amateur Athletic Association (NAGAAA) violates the Washington State law against sexual orientation discrimination in public accommodations. It says the group did so by imposing a rule that teams participating in the 2008 Gay Softball World Series could have no more than two heterosexuals per team.
Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR), said that the organization has “tried very hard” to settle this case and have NAGAAA change its policy, but to no avail.
“We are still hopeful that NAGAAA will agree to change the policy, as that is our goal here,” said Minter. “We strongly support LGBT sporting leagues, but the best practice, and the only lawful one, is not to exclude players based on their sexual orientation.”

“NAGAAA’s committee refused to entertain the idea that the players could be bisexual,” said NCLR. “In response to a player’s statement that he was attracted to both men and women, a NAGAAA member responded, ’This is the Gay World Series, not the Bisexual World Series.’”

via allamericanblogger.com

This seems to be a theme lately. It also happened to a gay politician in a gay district recently when there were allegations that he was a closet Hetero. The man came out and said he was Bi. It was apparently a major scandal.