The boy scouts' three association claims
Mcconnellm at LAW.UTAH.EDU
Wed Jun 7 15:21:15 PDT 2000
Andy Koppelman asks if he is exaggerating the difficulties with the
Scouts' position. I fear so.
> 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).
This particular case is an as applied challenge to the New
Jersey law, and the troop involved (now defunct) apparently agreed
with the national policy. So it is hard to see how this affects
Dale's case, even if the argument is sound in theory.
As to theory: BSA can be seen as a large agglomeration of many small,
intimate groups that associate together on the basis of shared
principles. If the nature of the relationship the government seeks
to regulate is itself intimate, I do not see why the fact that there
are thousands of groups with a shared moral vision makes it any less
> 2. Expressive association. The scouts claim that Dale, by his very
> presence, communicates a message of toleration that they don't want
> to endorse.
No, the Scouts support toleration. They claim that Dale, as an openly
homosexual person, will communicate a message that homosexual conduct
is moral. As the Supreme Court said of the gay marchers in Hurley, he
would communicate a message of "unqualified social acceptance."
Please do not confuse toleration with approval; the very useful idea
of toleration loses its meaning.
> The problem with this claim is that it is available to
> anyone who wants to discriminate against anyone else.
Not so. It only applies to discrimination based on conduct, or the
announced propensity to engage in a particular conduct. (Let's not
get into an argument over whether homosexuality in innate or not;
that is not the issue.)
> It is equally
> available to commercial and noncommercial entities, since commercial
> entities do have freedom of speech and freedom from compelled
Only in a much more limited sense. See Justice O'Connor's concurrence
> The claim is available, for example, to white employers
> don't want to endorse a message of toleration of blacks.
Toleration of blacks is a much different matter than toleration of
people who engage in a particular behavior, to which others object.
Again, "toleration" is the wrong word; there is nothing to "tolerate"
> It implies
> that the Civil Rights Act of 1964 is unconstitutional in all its
This is utter nonsense. It implies only that the CRA of 1964 would be
unconstitutional insofar as it interferes with the speech of
expressive associations. That is a very small set of cases.
Michael McConnell (U of Utah)
332 South 1400 East
Salt Lake City, UT 84112
mcconnellm at law.utah.edu
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