Resistance/backlash/response to Supreme Court opinions

[Morrison, Trevor W]

I quite agree with Professor Volokh's wise suggestion that this thread be kept limited to the constitutional issues.  To the extent those issues can only be understood in their factual context, however, I also think it is important to avoid hyperbole when describing what was at stake in the case.

With that said, it is unclear to me how Professor McConnell can agree with Professor Cruz (who said, e.g., that "[b]eing openly gay does not ENTAIL being open and expressive 'about [one's] sexual life,' [any] more than being openly straight does"), and at the same time construe Mr. Dale's statement that he intended to be "open" and "honest" about his sexuality as evidence of an intent to use his position as a Boy Scout leader as a "bully pulpit."  If a heterosexual Boy Scout leader were "open" with his troop about his heterosexuality (by, e.g., stating that he was married), surely Professor McConnell would not conclude that the leader was using his leadership position as a "bully pulpit" to further his views on heterosexuality.  So isn't that phrase a little overly dramatic?

Trevor Morrison



-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Thursday, August 31, 2000 3:39 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Re: Resistance/backlash/response to Supreme Court opinions


Trevor Morrison asks:

What evidence is there that Mr. Dale sought to use his position as a Scout
leader as "a bully pulpit" for his views on sexual orientation?  Isn't the
truth about his participation in BSA prior to his ouster "much less
dramatic"?

The evidence is Dale's own Complaint in the case. He specifically alleged
that he was *not* excluded because he was gay, but because he intended to be
"open" and "honest" about his sexuality. Joint Appendix, page 11. His
intention can also be inferred from his prominence as a gay activist at
Rutgers at the time, and his expressed opinion that there is a need for more
gay role models for teens. (The truth, I think, is that Dale had no interest
in being a scoutmaster at all; he had not participated since graduating from
high school. I think he was just a litigation poster child.)

-- Michael McConnell