West Virginia Business Litigation details an interesting case:

The lawsuit alleges that Frank, a former West Virginia Grand Master, was expelled from the Masons as a result of his successful efforts to reform the organization and eliminate practices that were, at best, anachronistic and, at worst, illegal …

Plaintiff Haas’ goal was to make Masonry more tolerant, friendly, decent and accepting of everyone regardless of nationality, race, religion or disability. …

The lawsuit raises questions about membership in a fraternal organization, such as whether a member is entitled to due process if he is to be expelled from the membership, and, if so, what type of due process.  

But I think the more important question presented by the action is the public policy aspect: can an organization, even one that is private and fraternal, take punitive action against a member for activities that are intended to rid the organization of illegal or unethical practices?  I would hope the answer is no, but that’s what the lawsuit will decide.

At least in Pennsylvania, the Pennsylvania Human Relations Act holds:

§ 953. Right to freedom from discrimination in employment, housing and public accommodation.

The opportunity for an individual to obtain employment for which he is qualified, and to obtain all the accommodations, advantages, facilities and privileges of any public accommodation and of any housing accommodation and commercial property without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, national origin, the use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.

Would the Masons count as a "public accommodation?" That generally depends on if it’s open to the public, a question much harder to answer than you’d think. Here’s Wikipedia on admission:

Generally, to be a regular Freemason, a candidate must:[20]

  • Be a man who comes of his own free will.
  • Believe in a Supreme Being. (The form of which is left to open interpretation by the candidate)
  • Be at least the minimum age (from 18–25 years old depending on the jurisdiction).
  • Be of good morals, and of good reputation.
  • Be of sound mind and body (Lodges had in the past denied membership to a man because of a physical disability, however, now, if a potential candidate says a disability will not cause problems, it will not be held against him).
  • Be free-born (or "born free", i.e. not born a slave or bondsman).[50] As with the previous, this is entirely an historical holdover, and can be interpreted in the same manner as it is in the context of being entitled to write a will. Some jurisdictions have removed this requirement.
  • Have character references, as well as one or two references from current Masons, depending on jurisdiction.

Deviation from one or more of these requirements is generally the barometer of Masonic regularity or irregularity. However, an accepted deviation in some regular jurisdictions is to allow a Lewis (the son of a Mason),[51] to be initiated earlier than the normal minimum age for that jurisdiction, although no earlier than the age of 18.

Seems awfully public to me, which would make the law apply. Eagle-eyed law students, though, will note that Boy Scouts of America v. Dale interprets the First Amendment as superseding these "public accommodations" laws where necessary to protect expressive freedom, and on the face of it I can’t see how the Masons’ discrimination would be different from the Boy Scouts’.

The same analysis would thus likely apply to West Virginia — making the Masons’ original conduct that Haas tried to reform protected, rather than illegal, and they can say they fired him for deviating from their expressive message. Similarly, the United States Constitution, where applicable, trumps Haas’ state-law tort claims (defamation, etc).

 

I underline "where applicable" to emphasis that, just because there’s a Constitutional right in the vicinity of the facts at issue doesn’t automatically mean the conduct is protected. The Masons could very well have gone beyond mere protection of their expression into intentionally harmful conduct, which isn’t protected at all.

Indeed, the Boy Scouts are a good example — their victory in Dale translated into the City of Philadelphia revoking the free rent they had enjoyed on Philadelphia City property. Again, the right to express yourself doesn’t automatically translate into, say, the right to enjoy a tax break.