Compelling Interest and Boy Scouts

[Volokh, Eugene]

        Mark persuasively explains why the government has a rational basis
for acting in ways aimed at "improving the rational capacities of human
beings," and certainly for "teach[ing] them to be more rational" in a
variety of ways that don't implicate their constitutional rights.  But I
thought the question was where the government gets a compelling interest,
one that would trump constitutional rights to expressive association,
perhaps (some say) to free speech, or to behave as one's religion commands
(assuming there is such a right).

> -----Original Message-----
> From: Mark Graber [SMTP:MGRABER at GVPT.UMD.EDU]
> Sent: Wednesday, June 14, 2000 10:35 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Compelling Interest and Boy Scouts
>
> May I suggest a broader source of a constitutional power to create a
> citizenry that does not discriminate on certain grounds.  A good many
> liberal theorists now claim that liberalism, properly understood, does not
> require neutrality between different notions of the good (which may be
> impossible), but a commitment to improving the rational capacities of
> human beings (think of R. Smith, Macedo, Galston, etc).  Thus, a society
> committed to this form of liberalism (and Smith makes a good case that
> this is sufficiently connected to the liberalism of the founders to make
> this an attractice constitutional position) might both respect a freedom
> of association, but foster attitudes that discourage certain forms of
> private discrimination, because such discrimination is irrational.  Of
> course, we now get into the debate as to whether rational reasons exist
> for Boy Scouts to discriminate against gays.  The point is if one believes
> no rational reasons exist, one could both recognize that i!
> ndividuals are free to be irrational, but to try to teach them to be more
> rational.
>
> Mark A. Graber
> mgraber at gvpt.umd.edu
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