Dale v. Boy Scouts, again

Sanford Levinson SLevinson at MAIL.LAW.UTEXAS.EDU
Tue Mar 20 11:02:11 PST 2001

Shameless self-promotion:  I have a piece forthcoming in the Fordham Law
Review, entitled Compelling Collaboration With Evil?  A Comment on Crosby
v. National Foreign Trade Council, a polemic against Crosby that notes,
among other things, that the Court that unanimously said that Massachusetts
had no right to refuse to deal with companies that did business in Myanmar
ruled within a month that the BSA had an expressive right, in effect, to
refuse to deal with gays.  If the BSA has such an expressive right, why
doesns't the state of Massachusetts, at least in the absence of an explicit
congressional override?  I don't think that Massachusetts has First
Amendment rights as such, but if we take the idea of collective
self-expression seriously, then should we accord states at least *some*
such right?  I ask this as a real question, not simply rhetorically.  After
all, a right of state self-expression is, at bottom, the defense of
continuing to place Confederate flags on contemporary state flags and
displaying offensive statuary in front of state capitals and the like.


At 07:19 AM 03/20/2001 -0700, you wrote:
>Unless you think, as the Court does, that private groups are entitled to
>determine the content of their own message -- at least, so long as their
>claim is not a sham. For the government to redefine a group's message is
>itself a First Amendment violation of the first order.
>Michael W. McConnell
>University of Utah College of Law
>332 S. 1400 East Room 102
>Salt Lake City, UT 84112
>-----Original Message-----
>From: Darren Hutchinson [mailto:dhutchin at POST.CIS.SMU.EDU]
>Sent: Monday, March 19, 2001 7:46 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Dale v. Boy Scouts, again
>David asked an interesting question about Dale; my response probably relates
>to the fact the I just completed an article analyzing ("attacking"? --
>sounds so brutal) the decision.  The principle of law that you state sounds
>lovely; whether the facts dictated the outcome in the decision is certainly
>up to debate -- unless, of course, the NJ appeals court, the NJ Supreme
>Court, and the 4 dissenters are patently "unreasonable."  The "principle of
>law" does not determine whether the group's "message" included the
>condemnation of "homosexuality."  It only gives us a framework for
>Darren Lenard Hutchinson
>Assistant Professor of Law
>Southern Methodist University
>P.O. Box 750116
>Dallas, Texas 75275-0116
>Phone: (214) 768-4639
>Fax: (214) 768-3142
>-----Original Message-----
>From: Discussion list for con law professors
>[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Michael McConnell
>Sent: Monday, March 19, 2001 7:24 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Dale v. Boy Scouts, again
>I am surprised at the resurgence of attacks on Dale. The principle of law
>for which it stands strikes me as reasonably clear, and should be
>uncontroversial at least among civil libertarians:
>The government may not require a private, expressive, noncommercial group to
>appoint leaders or spokespersons whom the group believes would undermine its
>Michael W. McConnell
>University of Utah College of Law
>332 S. 1400 East Room 102
>Salt Lake City, UT 84112
>-----Original Message-----
>From: David Bernstein [mailto:Deliotb at AOL.COM]
>Sent: Monday, March 19, 2001 6:16 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Dale v. Boy Scouts, again
>I'm amazed how eager everyone is to attribute Dale to anti-gay animus on the
>part of the majority, a proposition for which there is no direct evidence.
>There are all sorts of ways the majority could have distinguished Dale from
>cases involving race, sex, etc. (e.g., since laws affecting homosexual are
>not subject to special scrutiny, unlike race and sex, under the 14th
>Amendment...), leaving homosexuality as a particularly disfavored class, and
>they didn't do so.  This suggests that the Court did not want the opinion to
>be read as applying to gays only, and it won't be in the future.  And as far
>as results-oriented jurisprudence goes, I see it far more in the dissent,
>where Stevens suggests that the only reason that the First Amendment
>apply in a case like Dale is for fear of the consequences to
>antidiscrimination laws.  Since when is it the judiciary's role to refuse to
>enforce acknowledged constitutional rights because it will inhibit
>legislative activity that the Justices happen to think is important?
>Of course, a willful S.C. can ignore its previous precedents whenever it
>wants.  But if Dale is taken seriously outside its own context, there is a
>clear expressive association argument for constitutional protection of
>affirmative action preferences in private schools, to wit:   Many elite
>private universities seek to instill in their students an appreciation of
>importance of racial diversity at the highest levels of society,
>given that members of minority groups still suffer from the effects of
>historical and current racism.  These universities consider the promotion of
>diversity so important that they use racial preferences in their admissions
>process to achieve diverse student bodies.  Just as employing Dale would
>diluted the Boy Scouts' anti-homosexual activity message, forcing private
>universities to adopt race-neutral admissions policies would dilute their
>pro-"diversity" message.  Not unreasonably, the administrators of elite
>universities believe that if the law prohibits them from utilizing racial
>preferences, instead in effect requiring them to have an overwhelmingly
>(and, increasingly, Asian-American) class, it will be far more difficult to
>promote to their students the ideals of racial diversity and assistance to
>disadvantaged minorities.
>    Moreover, having a racially-homogenous class inherently sends a negative
>or at best indifferent message about the importance of diversity.  Engaging
>in racial preferences on behalf of under-represented minorities, by
>sends a message to both students and the world at large that the university
>rejects applying dubious "meritocratic" standards in a society that has what
>many argue amounts to an entrenched racial hierarchy.  Recall that in Dale
>the Court specifically stated that the Boy Scouts had a First Amendment
>to teach "by example."
>David Bernsteinm
>In a message dated 3/19/01 7:42:40 PM Eastern Standard Time,
>dhutchin at POST.CIS.SMU.EDU writes:
><< "Would those on the list who think Dale is such a horror renounce in
> their
> willingness to defend Harvard, or Rice, or Stanford, or Random Liberal U.
> from a reverse discrimination suit on expressive association grounds,
> because such a defense would also aid groups they despise?" -- David
> Bernstein
> Are you asking this question of us as attorneys or academics?  Attorneys
> often take positions without considering the broader political and
> jurisprudential climates of their arguments --  they are, for what it is
> worth -- charged with vigorously representing their clients.
> As an academic concerned about Dale's erosion (invalidation?) of the
> equality strand in Roberts, I certainly would take care not to encourage
> wide application of that decision.  As an indvidual skeptical of Dale's
> relevance to affirmative action -- and even more skeptical of the
> proposition that Dale would compel the majority (out of intellectual
> consistencey or otherwise) to take a different position than it currently
> takes in affirmative action cases -- I do not believe that colleges and
> universities could successfully invoke Dale to justify race-based
> affirmative action.
> There are various approaches that the Dale majority might take to
> distinguish Dale from affirmative action in higher education: Title VI
> applies the constitutional standard, which distinguishes private
> action from Dale (at least for schools receving federal aid); education is
> unrelated to race, and because Roberts requires a nexus between the
> institution's mission and its discrimination, you lose (yes, the Court
> resurrect Roberts); because education is unrelated to race, your
> "discrimination" (or "affirmative action") is merely a policy of invidious
> exclusion and, applying Roberts/Runyon/Rotary Club, we cannot legitimate
> sheer prejudice.  That is a start (and an end, since I do not wish to make
> arguments for the Dale/Affirmative Action majority).  "Random Liberal U"
> should not get excited about Dale....
> Darren Lenard Hutchinson
> Assistant Professor of Law
> Southern Methodist University
> P.O. Box 750116
> Dallas, Texas 75275-0116
> Phone: (214) 768-4639
> Fax: (214) 768-3142
> http://www.law.smu.edu/lawschool/faculty/hutchinson.htm
>  >>

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