Dale v. Boy Scouts, again

[Darren Hutchinson]

"It seems to me that the bulk of this paragraph, regarding the need for
evidentiary scrutiny into the "actual content of BSA's expressive
activities," constitutes precisely what Darren said would give him a sick
feeling." -- Michael McConnell

Not true.  Again, it is all in the framing of your proposition.  YOur
statement assumes that the Court has knowingly ignored the expression of the
group and is willfully violating the First Amendment ("We can INTERFERE with
your expressive rights...").  The problem in Dale and in all of these cases
is that courts must ascertain the expression of the group, particularly
because the group is claiming that a policy of unlawful discrimination
furthers its expression.  Even under your "substantial deference" standard,
courts must engage in an "evidentiary analysis," though very limited.  My
analysis only differs in the depth of the evidentiary review.  Under
substantial deference, conflicting evidence and post-litigation statements
of the "ultimate issue" in the litigation are credited; a substantial
evidentiary review, by contrast, does not abandon basic principles
concerning burden of proof (as Malla Pollack points out).

"As a political matter, I agree with Darren. I would not use the power of
the
state to interfere with a person's choice of intimate partner (at least not
in this context), any more than I would use the power of the state to
interfere with a private organization's choice of leader. The difference is
legal and constitutional: we have a constitution that protects freedom of
speech and of expressive association; our constitutional does not contain
any protection for choice of intimate partner, other than substantive due
process, which has (I think correctly) been interpreted as protecting only
liberties that are firmly rooted in our tradition." -- Michael McConnell

BUT, freedom of "expressive association" and freedom of "intimate
association" (which Boy Scouts also advanced) do not appear anywhere in the
constitution.  The same liberal construction of liberty that would give rise
to intimacy in the context of sexual relations also justifies the rights the
court recognized in Dale and in Roberts.  Recall, the lengthy discussion of
freedom of association in (none other than) Griswold.  The frequent
descriptions of Boy Scouts as a "private" institution appeals precisely to
the Court's liberal jurisprudence recognizng intimate associations (Moore,
Meyer, Loving, etc).  If the Boy Scouts can rely on unenumerated, but
implied, freedoms, then Dale and persons similarly situated should certainly
be able    to assert such interests as a bar to "Orewellian" intrusions in
their bedrooms.  Furthermore, if the constitution does not recognize a right
to choose the gender of one's sexual partners, then it does not recognize
the right of a 6 million-person membership organization to disassociate from
homosexuals.  Both rights are "inventions" of interpretation; neither right
is contained in any specific text in the constitution; both rights seem to
flow from a similar tradition -- associational freedom.  Finally, reliance
on "tradition" is just one basis for allowing judges to find rights not
specifically enumerated.  It just happens to be the most narrow basis, and
it is not free of bias -- intentionally or unintentionally; notice how
"tradition" in your analysis would allow heterosexuals to disassociate from
gays and lesbians on their camping trips and picnics, and bake sales, but
not allow gays and lesbians to choose desired partners for intimate sexual
relations.