Dale

[Larry Tribe]

I concur with Marty Lederman here. More broadly, it seems to me that this is
a case in which I was in greater doubt as to the right result before reading
the Court's decision than after reading it -- and not in the direction of
being persuaded by what the Court had to say. Rather, my reaction -- without
going into detail at the moment -- essentially takes the form:

"If this is the best that the Court could muster in support of striking down
the state's law as applied to compel the Boy Scouts to let Dale remain a
scout leader, then I'm closer than I was before to the conclusion that the
decision of the New Jersey Supreme Court was correct."

Among the aspects of the majority that seem to me especially weak is the
matter of giving the Boy Scouts virtual carte blanche to define, through the
briefs submitted to the Court in a litigating posture, what its supposed
"message" is, and to establish, subject to essentially no judicial review
whatsoever, why the legally mandated inclusion of an openly gay scout leader
would significantly undermine that message. Contrary to what the Chief
Justice says in his majority opinion, nothing resembling such abdication to
one of the litigants is entailed by the constitutional doctrines precluding
judicial second-guessing as to the logical consistency of an individual's or
group's religious or other beliefs or the ideological acceptability of a
person's or association's political or other viewpoints or statements. Cf.
Thomas v. Indiana Review Board.

Whether one might have reached the majority's conclusion through some other
route altogether, either in terms of an extrapolation from parental rights
(as I thought had been suggested by Justice Souter's concurrence in Troxel),
or in terms of a broader concept of associational freedom frankly untethered
from the First Amendment's text (hardly an option for the Chief Justice or
for Justices Scalia and Thomas), it now seems to me that the path to this
conclusion through the Free Speech Clause of the First Amendment as
incorporated through the Fourteenth Amendment's Due Process Clause has been
shown, by the Court's own effort to traverse that path,
to be not just uphill but a dead end.

-- Larry Tribe

-----Original Message-----
From: Lederman, Marty [mailto:Marty.Lederman at USDOJ.GOV]
Sent: Wednesday, June 28, 2000 4:18 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Dale


The majority's holding is dependent on its conclusion that the New Jersey
law "significantly burdens" BSA's expression.  While the majority engages in
an elaborate discussion of BSA's alleged "messages" regarding homosexuality,
strangely enough that discussion does not, in the end, appear to bear on the
"significant burden" question, as the majority does *not* in fact ever
conclude (or even suggest) that Dale's inclusion would affect anything the
BSA *does* say (or does intend to say) about that subject.  Rather, as many
of us on-list had predicted, at the heart of the decision was the so-called
compelled speech argument.  What is the nature of the significant burden?
Here is the Chief's ipse dixit, in its entirety:  "Dale's presence in the
Boy Scouts would, at the very least, force the organization to send a
message, both to the youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of behavior."  Slip op. at
11.  Of course, if that !
were true -- indeed, if there were *any* evidence to support the assertion
-- the majority's conclusion might be defensible.  But, as Justice Stevens
rightly notes, this statement is simply an "announce[ment], without
analysis."  Slip op. at 37 n.25.  Quoting Rehnquist's own dissent in Wooley,
Stevens continues:  "'But . . . these are merely conclusory words, barren of
analysis. ...  For First Amendment principles to be implicated, the State
must place the citizen in the position of either apparently or actually '
asserting as true' the message.'  Wooley v. Maynard, 430 U. S. 705, 721
(1977) (REHNQUIST, J., dissenting)."  The Chief cites nothing -- no
evidence, no authority -- to support this critical conclusion.

Stevens' opinion at great length demonstrates why the majority's critical
"force the organization to send a message" conclusion is indefensible.  Id.
at 33-38.  Most important, in my view, is the following paragraph (id. at
36-38), to which the majority understandably offers no response:

"Furthermore, it is not likely that BSA would be understood to send any
message, either to Scouts or to the world, simply by admitting someone as a
member.  Over the years, BSA has generously welcomed over 87 million young
Americans into its ranks.  In 1992 over one million adults were active BSA
members.  160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999).  The notion that
an organization of that size and enormous prestige implicitly endorses the
views that each of those adults may express in a non-Scouting context is
simply mind boggling.  Indeed, in this case there is no evidence that the
young Scouts in Dale's troop, or members of their families, were even aware
of his sexual orientation, either before or after his public statements at
Rutgers University. It is equally farfetched to assert that Dale's open
declaration of his homosexuality, reported in a local newspaper, will
effectively force BSA to send a message to anyone simply because it allows
Dale to be an Assistant Sco!
utmaster.  For an Olympic gold medal winner or a Wimbledon tennis champion,
being 'openly gay' perhaps communicates a message-- for example, that
openness about one's sexual orientation is more virtuous than concealment;
that a homosexual person can be a capable and virtuous person who should be
judged like anyone else; and that homosexuality is not immoral--but it
certainly does not follow that they necessarily send a message on behalf of
the organizations that sponsor the activities in which they excel.  The fact
that such persons participate in these organizations is not usually
construed to convey a message on behalf of those organizations any more than
does the inclusion of women, African-Americans, religious minorities, or any
other discrete group.  Surely the organizations are not forced by
antidiscrimination laws to take any position on the legitimacy of any
individual's private beliefs or private conduct."

Marty Lederman
(in my private capacity)