The boy scouts' three association claims
akoppelman at NWU.EDU
Wed Jun 7 14:07:39 PDT 2000
As I follow this thread, it seems to me that there is a tendency to run
together three distinct claims that the scouts are making. Some
arguments that start by relying on one seem to me to slip sub silentio into
the others, thereby obscuring the difficulties of each. Each claim has its
own distinctive problems.
1. Intimate association. The scouts meet in small groups, often in the
living rooms of private homes. The problem with making this the basis of
the scouts' claim is that it's not the small groups that are doing the
exclusion. As I understand it, scout policy requires the expulsion of gay
adults and children even if no member of a local chapter objects to the
presence of those persons. I don't see how the scouts can object to Dale's
infringement on their intimate association when the persons who find him
objectionable are unlikely ever to lay eyes on him even if his claim is
sustained (and, to my knowledge, no data exists as to the preferences of
the persons who are actually going to associate with him).
2. Expressive association. The scouts claim that Dale, by his very
presence, communicates a message of toleration that they don't want to
endorse. The problem with this claim is that it is available to anyone who
wants to discriminate against anyone else. It is equally available to
commercial and noncommercial entities, since commercial entities do have
freedom of speech and freedom from compelled speech. The claim is
available, for example, to white employers who don't want to endorse a
message of toleration of blacks. It implies that the Civil Rights Act of
1964 is unconstitutional in all its applications. I expect that my friend
David Bernstein will not shrink from these results, but does he have *any*
company in this august assemblage?
3. The absolute right of noncommercial associations to exclude anyone for
any reason. This, as I have said in the past, is the most plausible claim
the scouts have made. It is implicitly invoked in Michael McConnell's most
eloquent claims on the scouts' behalf. I find it tempting, for familiar
Tocquevillian reasons about encouraging a plurality of associations. But I
hesitate to endorse it (or to repudiate it) because I am uncertain what
results it would produce. It is, after all, pretty sweeping. The Supreme
Court might imaginably endorse it, but if they were to do so it would
certainly be the boldest exercise of substantive due process since Roe v.
Wade. I'd be much more comfortable with its adoption by statute,
preferably at the state level.
Am I exaggerating these difficulties? If so, how?
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
mailto:akoppelman at northwestern.edu
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