Reasoning of Jaycees case

[Bryan Wildenthal]

> -----Original Message-----
> From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
> Sent: Friday, June 09, 2000 10:58 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: The boy scouts' three association claims
>
>
> Perhaps the most interesting aspect of this discussion to me
> is that no
> one seems willing to defend the Supreme Court's apparent holding in
> Jaycees that just about any anti-discrimination law trumps
> the right of
> association because of the government's "compelling interest" in
> "eradicating discrimination."  Certainly, lower courts have
> interpreted
> Jaycees this way, see, e.g., the case involving Georgetown's
> funding of
> a gay student organization.

David Bernstein has put his finger on precisely one of the aspects of
Jaycees that most bothered me when I last taught it.  The reasoning of the
case seems very circular in that regard, since the very issue in dispute is
whether the entity in question is truly private/expressive and thus not
properly *subject* to any anti-discrimination mandate.  To put it another
way, govt plainly has a compelling interest (indeed, a duty) to eradicate
state-action discrimination, and it has a compelling interest in eradicating
discrimination in non-FA-protected private commercial conduct ("business
activities," broadly speaking).  But it has not even a *legitimate* interest
(under the FA) in "eradicating" discriminatory attitudes, beliefs,
expressions, or associations for the purpose of propagating same.  (Let me
qualify that by noting that govt of course can *itself speak* on those
subjects; I would not question its authority to encourage or even
propagandize for tolerance, but surely we must draw the line at censorship
and thought-control.)

I am currently in genuine doubt as to whether the *decisions* in Jaycees and
the similar 1980s cases were correct, but I find quite troubling and
unconvincing much of their analysis.

Bryan Wildenthal, Thomas Jefferson School of Law