The boy scouts' three association claims

[Andrew Koppelman]

Larry Tribe correctly points out that the Scouts might want to invoke the
right of a parent to make "a choice about a child's social
companions."  The difficulty with the asserted right is that, in the Dale
case (unlike Troxel, or Pierce), the parents' preferences do not appear to
be part of the record in the case.  (I do not know if they were part of the
record in Runyon.)  My understanding is that the decision to expel Dale was
made by the Scout leadership without any consultation of the parents or the
rank and file members.  Michael McConnell asserts that the thousands of
scout groups have a "shared moral vision," but it's hard to argue that this
shared vision includes condemnation of homosexuality when (1) most members
of the Scouts are not informed of the existence of the antigay policy and
(2) many of the troops are affiliated with religious denominations that do
not condemn homosexuality.  (In fact, I am unaware of any religion in the
United States that condemns as immoral or "unclean" the mere fact of
acknowledged homosexual desire, which is what Dale was kicked out for.)

Michael reports that "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."  Well, it certainly affects
the case if, in order for the scouts to prevail, they must prove that the
particular troop involved had an objection to Dale's presence.  That would
produce a very different rule of law, one that is considerably more
favorable to gays than the one that the Scouts are asking for.  It would
also change the result in Dale's case, since the U.S. Supreme Court would
have to remand for a trial on the disputed facts rather than simply
reversing the New Jersey Supreme Court's decision.  Wouldn't the same have
to follow from the parental choice theory?  How could the Court reject
Dale's claim on the basis of parental choice when there is no evidence
about what the parents want?

On expressive association, I don't follow Michael's distinction between
race and sexual orientation.  He writes:  "Toleration of blacks is a much
different matter than toleration of people who engage in a particular
behavior, to which others object."  If I interpret my organization's
message to include the untouchability of blacks, however, then that message
is undermined by the presence of black people.  Michael may be saying that
racism is obviously reprehensible in a way that traditional sexual morality
is not, and I agree with that, but I don't understand what bearing it has
on the expressive association claim.  Freedom of speech includes the right
to communicate messages that are obviously reprehensible.



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Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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