Dale v. Boy Scouts, again

[LoAndEd at AOL.COM]

It's probably not worth getting into this debate again, but there was no
issue in Dale about the sincerity of "belief."  It was conceded that the BSA
(or its duly elected officials, in any event) sincerely "believed" that gays
were not morally upright, and "unclean" (!), and that they were inappropriate
spokespersons.  In that sense, there was no inconsistency between Dale and
the Free Exercise cases that Michael invokes.  The same was true in, e.g.,
Roberts, Duarte, AP v. NLRB, Runyon, PruneYard, etc.:  in none of these cases
was there any dispute about the sincerity of the "beliefs" of those who would
discriminate.  The issue, instead, was (as it should have been in Dale)
whether and to what extent compliance with the antidiscrimination law would
have affected the organizations' *speech*, and, if so, whether that impact
was outweighed by the state interest.

Marty Lederman

Michael McConnell writes:

<< I agree that there is special reason not to second-guess religious claims.
 But there should be substantial deference to any private expressive group's
 claims regarding its own message. There is something Orwellian about the
 government telling a group: "We can interfere with your expressive rights
 because we don't think you believe what you say you believe."
  >>