Scarberry v. McConnell--NOT (I hope)

[Scarberry, Mark]

There is a real ARC; we donate used clothing and other items to the local
chapter. If, as I suspect (and as the last sentence of Jim's post suggests),
Jim has made up a hypothetical to make his point, then he should say so. I
wasn't sure but thought it was a hypothetical; obviously others on the list
thought it was a true story. Since there is a real ARC, Jim needs to tell
us. Real or hypothetical? And if it's real, do you have any additional
information, such as a cite or a newspaper article?

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: James G. Dwyer [mailto:JDwyer at UWYO.EDU]
Sent: Tuesday, February 01, 2000 9:46 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Scarberry v. McConnell--NOT (I hope)


This just in:

The national administration of ARC (Association for Retarded Citizens), the
largest private organization (and in some places the only organization)
providing services for mentally disabled adults, announced recently that it
will not allow homosexuals to occupy paid or volunteer positions in any of
its programs.  ARC, whose leadership believes homosexuality is immoral,
asserts that its right to free speech entitles it to reject applicants based
on sexual orientation.  A highly qualified applicant for a position in New
Jersey was rejected because he is homosexual, and he has challenged the
policy under the same State statute at issue in the boy scout case.  He
claims ARC is a public accommodation that must accept him without regard to
his sexual orientation.

Parents of mentally disabled adults, and other advocates for the disabled,
have various concerns relating to this matter.  For example, there is a
terrible shortage of qualified applicants for these positions, and ARC
programs have suffered a great deal as a result.  On the other hand, there
have been problems with sexual abuse of clients and some parents,
particularly those whose offspring have difficulty controlling sexual
impulses, believe (however irrationally) that gay staff members will be more
likely to sexually abuse clients or to tolerate or encourage - by word or by
example -- inappropriate sexual behavior.  Advocates for the disabled have
pointed out that some higher-functioning clients might be gay themselves,
and might benefit from seeing a gay person in a leadership position and from
having a gay person in a counseling role.  Several other concerns relating
to the welfare of clients have also been expressed.  However, the court
hearing the case, and law professors around the country commenting on the
case, have framed the matter solely in terms of the free speech rights of
ARC and the gay applicant's right to equal access.

Anything wrong with this picture?

Jim Dwyer


> -----Original Message-----
> From: Andrew Koppelman [SMTP:akoppelman at NWU.EDU]
> Sent: Monday, January 31, 2000 11:01 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Scarberry v. McConnell--NOT (I hope)
>
> Mark explains that the reason why his hypothetical opinion scrutinizes the
> Scouts' reasons for excluding Dale is to make sure that the stated reason
> is not "pretextual."  I'm not sure what sense that concept makes in this
> context.  An individual can be sincere or insincere; he can believe his
> stated reasons or not.  But what sense does it make to attribute sincerity
> or pretext to a corporate body?  Corporations don't discriminate, people
> do.  It makes sense to ask whether the corporation would have taken the
> same action if the applicant's race, sex, or sexual orientation were
> different.  A judgement that the stated reason for the action is not the
> real reason is a judgment about causation; race (or whatever) is the
> but-for cause of the action.  But where else in the law does one try to
> figure out whether a corporate body is sincere?
>
> I continue to think that the only coherent rule that would vindicate the
> Scouts is a rule entitling them to discriminate any time for any
> reason.  One might perhaps carve out an exception for race, but that
> exception would have to mean that they couldn't discriminate on the basis
> of race for even the sincerest of reasons.
>
>
> At 03:04 PM 1/28/00 -0800, Mark Scarberry wrote:
> >Fist, I don't think the hypothetical majority opinion is inconsistent
> with
> >the view that a group ought to be able to set its own principles and
> >interpret them. The opinion largely defers to the BSA's understanding of
> its
> >principles and mission, subject to looking for some indication that the
> >BSA's understanding isn't pretextual. E.g., suppose BSA refuses to allow
> an
> >African American (who happens to have an ingrown toenail) to become a
> scout
> >master, suddenly claiming that its moral principles preclude persons with
> >ingrown toenails from becoming scoutmasters. Suppose this occurred after
> the
> >BSA had terminated from leadership for no stated reason nearly all
> African
> >American leaders. It would seem clear in such an example that the BSA
> claim
> >to be against ingrown toenail sufferers is pretextual. If it suddenly
> >started kicking out white leaders with ingrown toenails, while allowing
> >black leaders to join who do not have ingrown toenails, then there would
> be
> >evidence that the BSA was merely eccentric, rather than that it was lying
> >when it claimed that the applicant's toe problems made his service
> >inconsistent with the BSA mission. (Perhaps this is similar to the
> difficult
> >sincerity issue in free exercise cases; a person's view need not be
> orthodox
> >within a particular religion or even reasonable--but it must be honest.
> Cf.
> >the California case involving a woman who claimed her religion required
> her
> >to engage in prostitution.)
> >
> >Whether the Court ought to recognize a right of the BSA to choose its
> >leaders on any grounds whatsoever (and thus never question the BSA's
> stated
> >reason and stated interpretation of its principles) is an issue reserved
> in
> >one of the footnotes of the proposed opinion. Personally I think that
> there
> >is a compelling interest in prohibiting the BSA from discriminating on
> the
> >basis of race, though probably not on any other basis. That would protect
> >even a pretextual reason as long as it wasn't a pretext for racial
> >discrimination, as in the ingrown toenail example.
> >
> >Second, the BSA was against the insolent, indolent and unwashed
> alternative
> >lifestyle (beatniks? with apologies if I've misdescribed the beatnik
> >tradition); against the drug culture lifestyle; against the violent gang
> >lifestyle; and presumably against the
> >heterosexual-adolescent-sexual-permissiveness lifestyle. EAch of those
> >violates in some way what used to be understood as traditional morality,
> >just as the gay lifestyle does. When the gay lifestyle became an openly
> >discussed issue, the BSA took the position that it violated BSA
> principles,
> >but did not want to discuss the issue openly with young (and perhaps in
> some
> >ways still innocent) boys.
> >
> >Third, if the BSA claimed that it had just embraced a new moral principle
> >(e.g., Vegan vegetarianism), courts should accept that claim at face
> value
> >absent evidence that it is pretextual. Here the BSA does not claim to
> have
> >embraced a new moral principle but to have simply made explicit what was
> >already clearly understood as an implicit part of its principles. It
> seems
> >to me that when a group claims that its principle is not new, evidence
> that
> >it is not new is helpful in showing that the principle is sincerely held
> and
> >not being used as a pretext for something else.
> >
> >Fourth, the free ex and establishment clauses, it seems to me, protect
> >religious organizations in their choice of leaders whether any other
> >provision of the constitution does or not, despite Professor Brant's
> >alarming thesis to the contrary. If a religious group wanted to exclude
> >black leaders, I would criticize the group harshly but would not allow
> the
> >state to intervene. Thus I don't think the state may second guess a
> >congregation's decision to hire the person with the good toenails rather
> >than the black ingrown toenail sufferer, even if there is strong evidence
> of
> >pretext. I don't think there is a need to protect nonreligious groups to
> the
> >same absolute extent, and thus I would not protect the BSA from
> intervention
> >were it to start discriminating on the basis of race.
> >
> >Of course it gets more complicated when a particular Scout troop (or cub
> >scout den) is sponsored by a church or synagogue. I suppose I would treat
> >that local Troop's leadership decisions as the unreviewable decisions of
> a
> >religious organization, but I'm not sure.
> >
> >[By the way, as one who suffered with an ingrown toenail on boy scout
> hikes
> >as a kid, I suppose the BSA might sincerely choose to exclude ingrown
> >toenail sufferers as leaders, on the basis that they are likely to be
> rather
> >grumpy during outings.]
> >
> >Mark S. Scarberry
> >Pepperdine University School of Law
> >mark.scarberry at pepperdine.edu
> >
> >
> >
> >-----Original Message-----
> >From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
> >Sent: Friday, January 28, 2000 12:49 PM
> >To: RELIGIONLAW at listserv.ucla.edu
> >Subject: Scarberry v. McConnell
> >
> >
> >Justice Scarberry's opinion closely scrutinizes the expressed beliefs and
> >traditions of the Boy Scouts and concludes that the New Jersey Supreme
> >Court misinterpreted the authoritative teachings of the Scouts.  He
> >implicitly agrees with the New Jersey court that judicial scrutiny of the
> >BSA's "message and mission," in order to determine whether the BSA has
> >correctly interpreted its own moral code, is an appropriate judicial
> >undertaking.  Luckily for the scouts, Justice Scarberry is willing to
> >overlook the fact that the scouts have never taken an official express
> >position on homosexuality.  He writes that "the BSA has consistently
> >opposed alternative lifestyles that conflict with its understanding of
> >traditional moral values," although the set of alternative lifestyles
> >appears in fact to be an awfully small one, including only homosexuality
> >and atheism.  Even though the scouts publicly take no position on the
> >subject, Scarberry thinks that they have and always have had such a
> >position.
> >
> >Even if the scouts can win on that basis, this seems like a pretty
> Pyrrhic
> >victory.  As I understand Michael McConnell's writings on this subject,
> it
> >is never appropriate for a court to tell the Scouts how to interpret
> their
> >own message.  Under the Scarberry test, it will always be appropriate for
> >trial courts to decide what an organization's true message is, and those
> >decisions will stand unless the Supreme Court is going to undertake de
> novo
> >review of every freedom of association case in the United States.
> >
> >  From the standpoint of the Scouts, McConnell's bright line rule -- if
> >you're not a commercial organization, you have a constitutional right to
> >discriminate against gays, blacks, Jews, or anyone else you like, and the
> >messages you've endorsed in the past are irrelevant -- seems a good deal
> >more promising.  Mark, is there a reason why you shrink from adopting
> >McConnell's rule, which is so much more protective of religious
> >associations than the one that you implicitly adopt here?
> >
> >
> >________________________________________
> >
> >Andrew Koppelman
> >Assistant Professor of Law and Political Science
> >Northwestern University School of Law
> >357 East Chicago Avenue
> >Chicago, IL  60611-3069
> >(312) 503-8431
> >akoppelman at nwu.edu
> >________________________________________
>
>
> ________________________________________
>
> Andrew Koppelman
> Assistant Professor of Law and Political Science
> Northwestern University School of Law
> 357 East Chicago Avenue
> Chicago, IL  60611-3069
> (312) 503-8431
> akoppelman at nwu.edu
> ________________________________________