Resistance/backlash/response to Supreme Court opinions

[Conkle, Daniel O.]

I had thought that this thread was wearing thin, but I found Andrew
Koppelman's posting to be quite interesting.

Although the posting in general was very helpful, I was especially intrigued
by Andrew's concluding observation:

"I recently discussed the case [Dale] with Richard Epstein, and he thinks
that it is written so broadly that it implies that the Civil Rights Act of
1964 is unconstitutional in all its applications.  I rarely agree with
Richard, but I had independently arrived at the same conclusion.  He is
delighted.  I am appalled."

Andrew's suggestion--which, on the face of it, seems quite remarkable--might
indeed return the focus to constitutional questions.  I'd be eager to hear
more from Andrew or others.  Do you mean this suggestion to be taken
literally?  As to every application in the context of public accommodations,
even in ordinary commercial settings?  As to other titles of the Civil
Rights Act?  How or why would one read Dale so broadly?

Dan Conkle
* * * * * * * * * * * * * * * * * * * * * * *
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu
* * * * * * * * * * * * * * * * * * * * * * *

  -----Original Message-----
From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
Sent: Friday, September 01, 2000 2:18 PM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Resistance/backlash/response to Supreme Court opinions


It is important that this discussion stay close to the legal issues and
that it not merely rehash what was said months ago.  My thinking has
shifted somewhat since that discussion, so I'm here again.

I wrote then that the constitutional issue was, to some extent, dependent
on the question (which I was unsure how to answer) of whether the Scouts
had a monopolistic position that they were able to exploit in order to
impose their own moral views on unwilling parents and children.  If they
did not, then it seemed to me that the case for freedom of association was
strong.

I interpret the backlash against the Scouts since the Supreme Court
decision to be, perhaps paradoxically, a powerful vindication of Michael
McConnell's view that freedom of association is the right rule here.  It
turns out that, when people know about the Scouts' position, they are quite
capable of responding with negative pressure of various sorts.  There
hasn't yet been much talk of schism within the Scouts, but I will now stick
my neck out and predict that that will eventually happen.  Many members
were unaware of the organization's antigay policy, and they aren't pleased;
I expect that eventually they will do something about it.  (Attitudes
toward gays have changed dramatically and continue to do so.  I just poked
around the Gallup website mentioned by John Nagle, and the percentage of
Americans who regard homosexuality as an "acceptable lifestyle" has risen
from 34% in 1982 to 50% in 1999.)  But, to pursue the monopoly metaphor,
this means that there are plentiful opportunities for market entrance and
substitution by consumers.  If the market is working well, then the case
for government antitrust regulation is correspondingly weak.

As for how to interpret the scouts' rule, whether as bigotry or as
traditional morality, this is a difficult question.  The plurality of
social meanings is a persistent problem, as McConnell himself has pointed
out in his trenchant criticisms of Justice O'Connor's endorsement test for
the establishment clause.

What troubles me most about the scouts' rule is that its presently stated
policy is to discriminate precisely on the basis of sexual orientation,
rather than on the basis of behavior or viewpoint.  James Dale was not
expelled for engaging in any kind of sexual behavior, since the scouts knew
nothing about his behavior (nor do I).  Nor do the scouts expel anyone who
thinks that homosexual behavior is morally acceptable; they are even
willing to have troops associated with churches that teach that homosexual
behavior is morally acceptable.  The basis for expulsion is *being* gay.

The Scouts hold that a person who experiences homosexual desire and
acknowledges this fact in public is neither "morally straight" nor
"clean."  This seems to me -- and I acknowledge the contestable nature of
my judgment here -- a far more virulently antigay message than that
propounded by the conservative varieties of Christianity and Judaism, which
hold that homosexual conduct is morally wrong but that homosexual desire
does not cause a person to be morally defective or unclean.  Opponents of
gay rights fall into two main camps.  One is the conservative religious
camp I just described, which holds a moral view that I think mistaken but
regard as decent and respectable.  The other is manifested in such things
as violence against gays (ubiquitous in American society) and the casual
treatment of gay people as intrinsically defective, a negative symbol of
masculinity.  It regards gays in much the way that Hitler regarded the
Jews.  It deserves no moral respect whatsoever.

Perhaps the views the Scouts mean to endorse are the former and not the
latter.  That is, at any rate, the way that their message is interpreted by
those on this list who are sympathetic with their position.  But their
position is highly isomorphic with the latter.  They are, at any rate,
discriminating on the basis of status in a way that is fairly
unique.  Contrast, for example, the Christian Legal Society, which was the
topic of extended discussion among some of us when Yale Law School refused
to let them recruit there.  I thought that Yale was wrong, because CLS does
not discriminate precisely on the basis of sexual orientation.  A person of
homosexual orientation who does not hide that orientation but who (1)
regards homosexual behavior as morally wrong and (2) is celibate would be
eligible for employment by CLS.  That same person would be expelled from
the Scouts for being unclean and unstraight.  The line that separates the
scouts from the worst antigay bigots is too fine for my crude perception,
and I think that the withdrawal of charitable contributions from them is
absolutely appropriate.

As for the expulsion from public facilities, this is a tougher question.  I
don't read Burton v. Wilmington Parking Authority to mean that the state
*must" require groups who meet in public facilities to be
nondiscriminatory.  But I think that it *may* so require.  Any reading of
the unconstitutional conditions doctrine that would forbid exclusion of the
scouts (because, in discriminating, they are exercising their
constitutional rights) would also forbid exclusion of the Ku Klux Klan,
would it not?

None of this is intended to condone the Supreme Court's dreadful opinion in
Dale.  I recently discussed the case with Richard Epstein, and he thinks
that it is written so broadly that it implies that the Civil Rights Act of
1964 is unconstitutional in all its applications.  I rarely agree with
Richard, but I had independently arrived at the same conclusion.  He is
delighted.  I am appalled.




________________________________________

Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
________________________________________