Dale v. Boy Scouts, again

[Lederman, Marty]

Once again I agree with the premise:  BSA excludes openly gay leaders because of its view that Scoutmasters should serve as "role models for the values of the organization."  My disagreement is with the notion that the Constitution provides an absolute "right" of private organizations (including so-called "noncommercial" organizations) to choose their "role models" and other "speakers" or "representatives" without regard to antidiscrimination laws.

For example:

1.  The Texas Democratic Party sincerely believed that blacks were inappropriate role models, speakers, and voters in the party primary.  But see Smith v. Allwright.

2.  The Jaybird Democratic Association of Fort Bend County, Texas, thought the same.  But see  Terry v. Adams.

3.  The segregated schools comprising Petitioner Southern Indep. Sch. Ass'n sincerely believed that an integrated classroom sent a message to students inconsistent with the message the schools wished to convey.  But see Runyon.

4.  The AP sincerely believed that a pro-union editor was an inappropriate person to be shaping the AP's choice of news stories.  But see AP v. NLRB.

5.  The Jaycees sincerely believed that women were inappropriate spokespersons or "role models" for the views the organizations wished to convey.  But see Roberts.

6.  Ditto the Rotary Club.  But see Duarte.

7.  Many private schools no doubt would love to have their tenure decisions immune from scrutiny under antidiscrimination statutes, asserting an absolute right to choose the "role models" that they will present to students.  But see EEOC v. Univ. of Pa.

8.  King & Spalding sincerely believed that Ms. Hishon was not the sort of person that the firm wanted among their partnership.  But see Hishon.

The question the Court asked in all these cases was not whether the organization was sincere in its contention that its speech would be affected, but instead whether and to what extent the organization's expression was, in fact, substantially infringed by virtue of the fact that it was not able freely to choose its spokespersons and role models.  In each case, the impact on speech was not deemed sufficiently intrusive to outweigh the state interest in enforcing its antidiscrimination laws -- largely because in each case the organization retained control over what its role models and spokespersons could *say*.

Rather than go on at greater length here about why the Court should have applied the same analysis in Dale, I'll simply append excerpts from my posts the last time we debated this issue, in late June 2000:

As even the Dale majority acknowledges, the threshold issue in a Roberts "expressive association" claim is whether application of the antidiscrimination law imposes a "significant burden" on the organization's expression.  The question is *not* whether the BSA has a sincere belief that homosexuality is incompatible with Scout principles -- of course it does (at least insofar as an organization's "beliefs" are fairly deemed to be those asserted by its leaders).  Nor is the question whether Scout leaders and lawyers themselves ever construed the Scout oath to reflect any views about homosexuality -- we can assume from their briefs that they do.  Nor is the question whether the Scouts *ever* expressly conveyed the view publicly that homosexuality is "unclean" and inconsistent with Scouting ideals.  Unfortunately, the Scouts made those views all-too-clear repeatedly in the course of this litigation. . . . All of these things were true, as well, with respect to the views of the Jaycees and the Rotary Club in those cases:  there was no
question, e.g., concerning whether the Jaycees sincerely believed (or advocated) that admission of women was incompatible with the Jaycees' creed.

Instead, the pertinent question is whether retaining Dale under compulsion of New Jersey law would *significantly burden* BSA's expression.  Surely, it is relevant to *that* question that BSA had never, before this litigation, made opposition to homosexuality a central, or even express, part of its public expression, or part of its teachings; that no reasonable person would ever have understood the BSA's historic expression to convey such views about homosexuality; that many members and sponsors of BSA expressly have articulated opposing views, etc.

In my view, it's quite plain that the New Jersey law had little, if any, effect, on BSA's actual expression.  Indeed, application of that law in this case gave the BSA the opportunity to make its views on homosexuality much better known, and more expressly and repeatedly clarified, than it ever has had in the past.  And the state law, of course, does not in any way restrict the right of BSA to express any views it wishes about homosexuality, nor to insist that its leaders convey such views in their official capacity. Perhaps it's for all these reasons that BSA barely attempted to make a Roberts argument (relegating it to a couple of paragraphs toward the tail-end
of its brief), and why, when it came time for the Dale majority actually to identify the "significant burden" on BSA's expressive rights, the majority did *not* assert that BSA's speech or expression was stymied or undermined (let alone significantly burdened), but instead relied exclusively on the fact that retention of Dale would require BSA to send an unwanted message. . . . The majority does *not* in fact ever conclude (or even suggest) that Dale's inclusion would affect anything the BSA *does* say (or does intend to say) about that subject.  Rather, as many of us on-list had predicted, at the heart of the decision was the so-called compelled speech argument.  What is the nature of the significant burden?  Here is the Chief's ipse dixit, in its entirety:  "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."  120 S.Ct. at 2454.  Of course, if that were true -- indeed, if there were *any* evidence to support the assertion -- the majority's conclusion might be defensible.  But, as Justice Stevens rightly notes, this statement is simply an "announce[ment], without analysis."  Id. at 2477 n.25.  Quoting Rehnquist's own dissent in Wooley, Stevens continues:  "'But . . . these are merely conclusory words, barren of analysis. ...  For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually ' asserting as true' the message.'  Wooley v. Maynard, 430 U. S. 705, 721 (1977) (REHNQUIST, J., dissenting)."  The Chief cites nothing -- no evidence, no authority -- to support this critical conclusion.

Stevens' opinion at great length demonstrates why the majority's critical "force the organization to send a message" conclusion is indefensible.  Id. at 2476-77.  Most important, in my view, is the following paragraph, to which the majority understandably offers no response:

"Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or to the world, simply by admitting someone as a member.  Over the years, BSA has generously welcomed over 87 million young Americans into its ranks.  In 1992 over one million adults were active BSA members.  160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999).  The notion that an organization of that size and enormous prestige implicitly endorses the views that each of those adults may express in a non-Scouting context is simply mind boggling.  Indeed, in this case there is no evidence that the young Scouts in Dale's troop, or members of their families, were even aware of his sexual orientation, either before or after his public statements at Rutgers University. It is equally farfetched to assert that Dale's open declaration of his homosexuality, reported in a local newspaper, will effectively force BSA to send a message to anyone simply because it allows Dale to be an Assistant Scoutmaster.  For an Olympic gold medal winner or a Wimbledon tennis champion, being 'openly gay' perhaps communicates a message-- for example, that openness about one's sexual orientation is more virtuous than concealment; that a homosexual person can be a capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoral--but it certainly does not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel.  The fact that such persons participate in these organizations is not usually construed to convey a message on behalf of those organizations any more than does the inclusion of women, African-Americans, religious minorities, or any other discrete group.  Surely the organizations are not forced by antidiscrimination laws to take any position on the legitimacy of any individual's private beliefs or private conduct."


Marty Lederman (in my personal capacity)



-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Friday, March 23, 2001 10:46 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: Dale v. Boy Scouts, again


OK, so we are agreed that the Boy Scouts correctly state their own beliefs;
there is no legitimate issue regarding sincerity, accuracy, or whatever.

The second step, which is equally clear, is that scoutmasters serve as role
models for the values of the organization -- which is why openly gay leaders
are excluded. Again, this is something a private expressive organization
needs to be able to judge for itself.

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


-----Original Message-----
From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
Sent: Thursday, March 22, 2001 6:06 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Dale v. Boy Scouts, again


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."
  >>