Responsive thoughts on Boy Scouts and association

[DAVID E. BERNSTEIN]

Public accommodations laws that apply to private, membership
organizations like the Jaycees cannot be plausibly said to have only
incidental effects on expressive association.  Implicit in their very
purpose, contrary to what the Court said in Jaycees, is to get the
organizations to change their worldview by forcing them to admit people
who are less likely to agree with the organization's goals than is the
current membership.  In most expressive organizations, the membership's
view ultimately determine policy, so by forcing expressive organizations
to change their membership policies, the government is ultimately
forcing them to change their views.  An interesting question:  to what
extent would forcing the Scouts to admit gays ultimately lead to, or
accelerate, a change in their position on homosexual activity?

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> "Lederman, Marty" <Marty.Lederman at USDOJ.GOV> 06/09/00 04:43PM >>>
(Aside to David Bernstein:  I, for one, am willing to defend Roberts's
adoption of what is, in effect, the O'Brien test, for incidental effects
on speech of generally applicable antidiscrimination laws.)