Dale v. Boy Scouts, again

[LoAndEd at AOL.COM]

In his recent article on the "associational" rights of political parties
(which I highly recommend, btw), Sam Isaacharoff includes a short, but to my
mind very incisive and compelling, critique of the Court's "right of
association" decisions last Term in Dale and in CalDems.  101 Colum. L. Rev.
274, 293-98 (2001).  Sam notes that in prior "right of association" cases,
the Court was careful to describe the right of association as ancillary to,
and in the service of, the right of expression (and of "intimate
association"), and did not "set up an open-ended rights claim nor simply to
find in some overlap with state functions a trump that overcame any claim to
associational autonomy.  Instead, each case [pre-2000, such as Runyon,
Roberts and Duarte] measured the level of state intrusion functionally
against the ability of the organization to play its social role."  In Dale
and in CalDems, Sam notes, the Court departed from this functional inquiry.
For instance, in Dale the Court should have, but did not, "ask what the
purpose of the organization is, what compromises of that purpose would be
entailed in the proposed regulation of its activities, and what societal
interest would be advanced that would justify he imposition of the
restriction on organizational independence."  In particular, the Court should
have confronted the "difficult determination of whether the Boy Scouts had so
successfully integrated themselves as a central institution for the
socialization of America's boys as to compel a corresponding acceptance of
the norms of the society, the prohibition on discrimination on the basis of
sexual orientation included."

For purposes of responding to Andy Koppelman's specific inquiry whether Dale
announces any "rule of law," Sam has a provocative footnote, 101 Colum. L.
Rev. at 298 n.93, in which he writes:  "Since the Court in Dale did not apply
a functional analysis, it presumably would have yielded the same result had
the Boy Scouts engage in exclusion along racial lines.  Such a result in a
challenge to racial discrimination would be simply unimaginable."

If you agree, as I do, with Sam's conclusion as to the hypothetical involving
BSA race discrimination, and if you further agree, as I do, that the
simplistic and non"functional" analysis Rehnquist employed in Dale is
inconsistent with a long line of "right of association" cases, then I think
it fair to say that BSA v. Dale announces no "rule of law" at all, but is
(like the decision in Bush v. Gore) a restricted ticket "good for this day
and train only."  In particular, I think Dale can be distinguished from
Runyon, Roberts, Duarte, EEOC v. U. of Pa., AP v. NLRB, PruneYard, etc., on
the simple ground that it involved gay rights.  The Court majority has much
more solicitude for the right of an ostensibly "private" organization to
invoke homophobia to govern its associational exclusions than it would have
if the same organization wished to honor a "sincere" commitment to racial
exclusion.  Put another way, I think the majority has very little sympathy
for, or understanding of, the decision of the people of New Jersey to attempt
to ensure that its citizens are not denied basic "privileges and benefits" of
public life because of their sexual orientation.

On this last point, I should add that in reviewing the briefs in Runyon, I
was struck by the uncanny similarity between the arguments made by the
Petitioner Southern Indep. Sch. Ass'n in Runyon and the BSA in Dale.  In both
cases, for instance, the ostensibly private organization urged that it be
permitted an exemption from the basic antidiscrimination requirement because
it was critical that the Constitution be read to preserve a "private sphere"
in which private groups could opt out of conformity to a relatively recently
established moral consensus.  (The same argument was made by "private"
shopowners and proprietors in the wake of the Civil Rights Act.  Like the
petitioners in Runyon and in Dale, they invoked a sacred "private sphere" and
in effect analogized their activities to a private dinner party, or the
choice of parents to choose a babysitter for their children.)

Of course at the time they were written, the arguments in the Runyon briefs
were well within the range of acceptable legal debate, even if they were
ultimately unsuccessful.  From the perspective of 2001, however, I found the
Runyon briefs quite shocking.  (It was, after all, suburban D.C. in 1976, not
Alabama in 1964!)  I suspect that, a quarter-century from now, readers of the
BSA brief, and of the majority opinion in Dale, will have a similar reaction.

Marty Lederman (in my personal capacity)



Andy KoppeIman writes:

<< I am beginning to write a paper on Dale v. Boy Scouts, and find that I have
 a very basic problem.  I cannot discern, from the opinion, the scope of the
 freedom of expressive association that it protects.  There are a number of
 pejorative readings of the majority opinion that Stevens offers in his
 dissent, and none of them can be what the majority intends.  But Stevens's
 reading gets its plausibliity from the obscurity of the line that the
 majority draws.

 My question is one of positive law:  Can one state the rule of law that
 Dale lays down, in order to know what is covered by the rule?  We had a
 lengthy discussion months ago about the merits of Dale, and I DO NOT want
 to revive that discussion, which would probably just repeat, at higher
 volume, what has already been said.  The question on the floor is one of
 pure positive law.  What did the Court hold in Dale?  Is there a plausible
 reading that does not (1) give everyone a free pass from antidiscrimination
 laws or (2) assign gays a special pariah status, so that legal compulsion
 to associate with them implies a message of approval and thus is forced
 speech under Barnette?  Those are Stevens's two proposed readings.  Are
 there others?

 I think that the question as asked is appropriate for the list, but if we
 start debating the merits again, Eugene would be right to shut us down.  So
 respond with care!

  >>