Gay Executive Who Was Fired by Scouts Files Bias Suit

[Bryan Wildenthal]

There would be some interesting California state law issues to resolve
before the Cal courts have to reach any Dale constitutional issues.  The
California Supreme Court, pre-Dale (in 1998, before the NJ S Ct decision),
held that California's public accommodations law did not apply to the Boy
Scouts refusal to allow an openly gay troop leader (who I believe was a
volunteer like Dale, not an employee).  Thus, as a matter of statutory
construction (at least as applied to that situation) the Court avoided the
difficult constitutional freedom of association issues that Dale confronted
and that many of us on this list have debated.  The case name, as I recall,
is Curran v Mt Diablo BSA, it was unanimous (concurred in result even by the
few remaining "liberals" on our state court, though not agreeing on one
opinion as I recall) and it contains what I think is some thoughtful
discussion (for my money, much more thoughtful and persuasive than the NJ S
Ct's Dale decision) about how it matters very much exactly what kind of
activity the BSA (or any association) is engaging in, as to whether it is
subject to an anti-discrimination mandate.  For example, the Cal Court
suggested the BSA is completely subject to discrimination rules to the
extent, LL Bean style, it might sell camping gear or logo merchandise or
whatever.  But to the extent it seeks volunteer troop leaders who perform an
ideological, inculcative function relevant to the expressive purposes of its
association, the Cal Court said it was not subject to the statute.  This
type of analysis may be usefully carried over to the constitutional issues,
I think (and obviously was, in somewhat crude form in my view, in
Rehnquist's Dale opinion).

This new case would, of course, require the Cal Court to consider Mt
Diablo's possible application to the statutory interpretation of the state
employment discrimination law, which, I agree with Ken Katkin, certainly
raises some different issues and might well produce a different result.  But
my tentative reaction is somewhat different.  I would think an ideologically
oriented organization might well be justified in discriminating as to who it
employs, at least in a top executive or policy-influencing type position,
when the characteristic in question might well reasonably be thought to
create a possible crisis of conscience or loyalty in the employee with
regard to the association's ideological mission.  I don't think identity can
be at all easily separated from expression in many contexts.  To put it
bluntly, can't the Ku Klux Klan refuse to employ an African-American as its
spokesman or other top executive?