While many state and local laws prohibit discrimination far more broadly than the Federal civil rights laws, to the extent they would override the rights of organizations to engage in "expressive association" as protected by the First Amendment to the United States Constitution, they would not be upheld. Whenever there is a conflict between state or local law and the United States Constitution, the Federal Constitution trumps any provision of state law, no matter how well intentioned.

The Supreme Court decisions in this area suggest that the courts consider each matter on a case by case basis. In the 1980s, the United States Supreme Court held that the First Amendment did not justify sex discrimination by civic clubs. It held state Civil Rights Laws could apply to such all male organizations as the Rotary and Jaycees, and prohibit them from excluding females from their organizations. It noted that their exclusion of women was not part of those organizations' shared goals or expressive messages. However, in 1995, the Supreme Court held that the anti-discrimination provisions of Massachusetts's public accommodation law could not be used to stop the private association sponsoring the St. Patrick's Day Parade in Boston from excluding a gay, lesbian and bi-sexual group seeking to carry a banner expressing views that the association objected to. To do so would violate the sponsoring association's rights under the First Amendment of the United States Constitution.

On June 28, 2000 the United States Supreme Court held, by a 5 to 4 vote, that New Jersey's Civil Rights Law could not be applied to prohibit the Boy Scouts of America, a 5 million member organization, from discriminating against an openly gay assistant scoutmaster. The Boy Scouts contended that homosexual conduct was inconsistent with the Scouts' expressed values, and having to keep the avowedly gay leader him would affect in a significant way the group's ability to advocate public or private viewpoints. The closely divided Supreme Court held that applying a state's Civil Rights law to require the Boy Scouts to retain the gay scoutmaster would impair its rights to expressive activity, and thus violate the association's rights under the First Amendment of the United States Constitution and be a "severe intrusion on the Boy Scouts' rights to freedom of expressive association."