Dale v. Boy Scouts, again

Leslie Goldstein lesl at UDEL.EDU
Thu Mar 22 06:55:23 PST 2001


Are you saying the BSA CHANGED its argumetn from membership policy to leadership
policy between the first NJ case and the USSCt level, or that it started making
the leadership argument as soon as the lawsuit hit them but the NJSupremes
ignored it and focused on the membership issue , while the USSCt chose to focus
on it.?  (Dale was kicked out as a member, not jsut a leader.)
LFG

Darren Hutchinson wrote:

> This happened because BSA typed up a bunch of memoes concerning "standards
> for leadership" after the lawsuits in Calif. and NJ went forward.  The
> Supreme Court applied a "deference" standard and held that these
> post-litigation documents prove BSA's "sincerity."  The NJ Courts treated
> these documents as "self-serving" - not a stretch when they state the very
> issue involved in the litigation.  If BSA were so concerned about
> homosexuality, one would imagine that the organization could have turned to
> more than post-litigation statements to demonstrate its "sincerity," and
> certainly "post-litigation" statement should have raised the eyebrows of the
> senior jurists in the majority.  Oh, lest I be accused of not providing the
> full record -- the court also credited the "morally straight" and "clean"
> argument -- that these slogans (which existed long before the litigation)
> embody anti-gay animus.  Deference can take defendants very far in
> antidiscrmination litigation -- apparently, right up to the stature of
> Congress in military affairs.
>
> What bothers me the most about Dale is silent its departure from Roberts.
> Certainly the Court can overrule or modify existing precedent; doing so
> "quietly" and without explanation, however, only creates confusion and
> renders its analysis insincere (especially when it cites to the precedent it
> is quietly abandoning, like the Casey joint opinion).
>
> 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
>
> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
> Sent: Wednesday, March 21, 2001 7:03 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Dale v. Boy Scouts, again
>
> I just taught Dale and have been curious about the following:
> how did it happen that the legal issue changed from BSA membership policy
> (the
> way Dale was kicked out to start with and the way, at least in the casebook
> I
> was using , the NJ supremes reasoned it out) to
> BSA-leadership/inculcation-of-straight-living- standards-goal-of-org'n legal
> issue.  Was this Mike's own clever doing, was it the way the S.Ct granted
> cert,
> was it the real issue in the court below but distorted by my casebook or
> what?
> Just curious how these things happen.
> Best,
> Leslie
>
> Michael McConnell wrote:
>
> > 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
> > message.
> >
> > 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
> > wouldn't
> > 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
> > the
> > importance of racial diversity at the highest levels of society,
> > particularly
> > 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
> > have
> > 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
> > white
> > (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
> > contrast,
> > 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
> > right
> > 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
> > advance
> >  their
> >  willingness to defend Harvard, or Rice, or Stanford, or Random Liberal U.
> >  from a reverse discrimination suit on expressive association grounds,
> > simply
> >  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
> > affirmative
> >  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
> > would
> >  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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