Dale v. Boy Scouts, again

[David Bernstein]

Undoubtedly, the Court *could* distinguish the affirmative action example
from Dale, for example, by relying on dictum from Bob Jones that
discrimination in education is special.  But this assumes that the Court
wants to distinguish the affirmative action example, either because (1) Dale
was simply an anti-gay case; or (2) the Court is so against private
affirmative action that it will strain to distinguish that scenario.  In my
view, Dale should not be seen in isolation, but as part of a broader struggle
over whether civil society deserves any protection from antidiscrimination
laws.  Note that 4 of the 5 Justices in the Dale majority have elsewhere
expressed their discomfort with the way sexual harassment law impinges on the
First Amendment.  Note, too, the recent 9th Circuit case upholding *personal*
liability against HUD officials who tried to use the Fair Housing Act to
silence a community group opposed to the placement of a halfway house in
their neighborhood.
Roberts implicitly stood for the proposition that antidiscrimination law is
not subject  to First Amendment constraints--courts should either interpret
away the First Amendment problems, or find that antidiscrimination law trumps
the First Amendment because of the gov't's compelling interests.  My view is
that Dale reflects a severe retreat from Roberts, which will manifest itself
is a variety of contexts having nothing to do with gay rights.  For example,
church schools will now be able to fire unmarried, pregnant teachers, which
courts previously repeatedly held they had a right to do only under very
constrained circumstances.

David Bernstein

In a message dated 3/19/01 10:38:24 PM Eastern Standard Time,
dhutchin at POST.CIS.SMU.EDU writes:

<< David, what do you make of the potential "distinctions" and doctrinal
shifts
 that I point out?  While I did not attribute Dale to "anti-gay animus" here,
 I do so in my recent article on the subject.  I (obviously) do not find that
 position "amazing."


 Darren Lenard Hutchinson >>