Stevens dissent in Dale--Final Post

Scarberry, Mark Mark.Scarberry at PEPPERDINE.EDU
Thu Jun 29 13:33:48 PDT 2000

This is a response to David Cruz's and Marty Lederman's posts defending
Justice Stevens' dissent against criticisms posted by Eugene Volokh and
(less ably) by me. Please pardon the length of this post; I intend it to be
my last on this issue. Contrary to Justice Stevens' interpretation of
"last," this does not mean that I think this should be the last thing you
would ever want to read (although it may be).

Neither David nor Marty has explained how Justice Stevens' cramped reading
of the BSA policies comports with a healthy respect for associational
rights. His approach, as Eugene's post shows, is not a respectful
consideration of whether the BSA's views are pretext for litigation purposes
or instead sincerely held views. Justice Stevens parses the BSA statements
critically in light of his view that the BSA's claimed view is atavistic. He
uses a rhetorical device to make a BSA statement mean the opposite of its
apparent meaning: he says that scoutmasters are the last people the BSA
wants boys to talk to about sexual issues, when, as Eugene points out,
scoutmasters are simply listed last in a fairly short list of persons to
whom the BSA wants boys to turn for advice. [I return to this point in my
final paragraph, but what grade would you give a student who applied this
interpretive approach to interpret contract language on a Contracts final
exam? or to a student who didn't answer the last question on the exam,
because he or she assumed that was the last question you would ever want
them to answer?]

Nor has anyone attempted to defend Justice Stevens' view that the BSA's
constitutional rights are reduced because of its earlier statement that it
would not engage in civil disobedience if its practices were outlawed.
Justice Stevens says that the BSA's apparent lack of willingness to disobey
the law shows that it did not have an unequivocal position on homosexuality.
Apparently he thinks the BSA would have been satisfied--and should still be
satisfied--to be coerced into violating its principles as long as it could
still say that it held those principles.

Nor has anyone yet defended the dissent's factual mistake which leads it to
give little weight to BSA's post termination statements of its policies.
When Dale's membership was terminated, the NJ law did not prohibit
discrimination on the basis of sexual orientation. Thus the question whether
BSA violated the law when it terminated Dale does not require any exegesis
of the BSA policies. If the question is whether the BSA now is entitled to
exclude Mr. Dale, all statements up to the present (or at least up to the
time of decision in the trial court) are relevant. Doesn't this factual
mistake indicate a predilection on the part of Justice Stevens to minimize
facts that might cast doubt on his interpretation of the BSA's policies?

I wonder, given these serious flaws in the dissent, whether Professor Tribe
has rethought his view of the dissent. Perhaps he may want to respond to
these points if he still thinks the dissent is more persuasive than the
majority opinion.

But Marty points out that even if the BSA really holds the position it
claims, there is no showing that having Dale as a leader would significantly
burden BSA's expression. Marty then says that opposition to homosexual
conduct is neither a central part of BSA expression nor even an express part
of it. I don't know where the centrality requirement comes from; in Hurley
the parade organizers did not have a central message of staying clear of
controversy over homosexuality, but their rights were recognized. Further,
the BSA by its nature and by the nature of its young members engages in much
or most of its expression not expressly but by modeling and by focusing on
topics suitable for the young members. Groups that teach by example and by
role models may engage in little "express" expression and much expression by
way of the conduct and character of the persons chosen as role models,
including their public conduct and character when not directly engaged in
work for the group. The choice of the leader/role model is perhaps the most
important expression such a group engages in.

To say that choices of leaders/role models based on conduct and character
are not protectable expression unless the BSA expressly tells the boys what
the criteria are, is to  require the BSA to make an express statement to 11
year olds that it does not wish to make. The BSA does not want to discuss
homosexuality with 11 year olds. (That reflects an unfashionable view that
whatever innocence a child may retain should be protected to the extent
possible. That is part of the meaning of my prior statement that the BSA
should not have to expressly denounce cannibalism in order to choose
noncannibals as leaders; some subjects may not be appropriate for 11 year
olds.) The BSA does want to provide role models of persons who do not engage
in homosexual conduct or publicly advocate the acceptability of homosexual
conduct. In addition, the BSA expects that boy scouts will at times seek
advice from scoutmasters as to sexual matters. It wants that advice to be
consistent with its beliefs.

The BSA is quite reasonable in assuming that Dale's advice would not be
consistent with its beliefs. Dale also publicly advocated the acceptability
of homosexual conduct. From the BSA's point of view, he was not an
appropriate role model to lead boys by example nor an appropriate person to
express the BSA's views to boys who ask about sexual matters.

Whether the BSA's general policy of exluding "avowed homosexuals" is
overbroad does not seem to me to be the issue here. Even if it were, it
seems the BSA would accept as a scoutmaster a person who publicly
acknowledged a same sex orientation but who also stated his agreement with
the BSA view that homosexual conduct is wrong and to be avoided. The BSA
reasonably could think that most people who openly state that they are gay
also accept homosexual conduct as appropriate, unless they are also willing
to say that they do not accept it. How much doubt would we have about
whether a person aproves of oil painting (or of racism) if the person openly
proclaimed that he was an oil painter (or racist) and said nothing to
indicate that he disapproved of oil painting (or racism)?

It also seems the BSA terminates heterosexual scoutmasters who publicly
indicate that homosexual conduct is acceptable. There is thus at least a
strong case that the BSA exclusionary policy is a reasonable way of ensuring
that its expressive activities stay true to the BSA's views (whether or not
those views are reasonable).

Finally, with respect to why the BSA has not been more express in its
statements to adults and to the public on the issue of homosexual conduct:

Maybe some of this is due to cowardice or expediency. But a lot of groups
strongly hold controversial views which they minimize for external
consumption so as to avoid controversy. Given the reluctance of our society
to shield young people from adult speech, the BSA may also have wanted as
little public attention drawn to the issue of scouts and homosexuality as
possible. And of course any document widely spread to adult BSA leaders
rapidly becomes public.

Much of the BSA's reticence, though, is probably due to failure of the BSA
to keep up with the more "progressive" parts of society. The BSA embodies a
kind of traditional morality; most communities which share traditional
moralities have, until recently at least, regarded homosexual conduct as
wrong. At the time the BSA oath and law were drafted, no reasonable person
would have thought the BSA was accepting of homosexual conduct. It would
have been considered scandalous, outrageous, and utterly unnecessary for the
BSA to be explicit on this point. The BSA would have thought it as
unnecessary to be explicit on that issue as on the issue of the
acceptability of cannibalism. (I mean to include a "friendly," supposedly
victimless sort of cannibalism, where people who die natural deaths and who
approve of cannibalism are eaten by their friends and relatives.)

When times change, groups' views may or may not change. Even the United
Methodists(not a bastion of conservatism) and the Presbyterian Church USA
(my church, not called the "PC" USA for nothing) still frown on homosexual
conduct. Of course, other groups that claim an allegiance to a kind of
traditional morality (including the Girl Scouts and some religious groups)
disagree. The BSA did not make specific, express statements on homosexuality
until society changed enough to make people wonder what the BSA's position
would be and to make the issue a live one. Once persons who are openly
homosexual sought to join the BSA, it spoke clearly on the issue.

When Justice Stevens notes that the BSA is in favor of "moral straightness"
and "purity" and then assumes that those have nothing to do with sexual
practices, he is assuming that the BSA shares his moral framework. It
certainly did not share that framework when the BSA was formed, and it has
done nothing to indicate that it has adopted the Stevens framework. Justice
Stevens' approach to interpretation would result in his receiving a low
grade in my Contracts class, and I suspect an even lower grade in Contracts
classes taught by professors who thoroughly reject the plain meaning rule.
It is a bit ironic that Justice Stevens is quicker to find a plain meaning
in the BSA policies than in statutes or the Constitution.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at

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