Boy scouts

Michael McConnell Mcconnellm at LAW.UTAH.EDU
Wed Feb 2 07:06:25 PST 2000

Mark Graber writes:

> The little leagues I played on as a kid had as much of a moral code as the boy scout troops I was involved in.  And I strongly suspect that there are many little leagues that discriminate against gay>

The point, however, is that there is no inconsistency between being
Jewish and holding the "moral code" of the Little League. The
hypothetical Jewish Little Leaguer does not *disagree* with the
Little League's moral code, and his purpose in joining is not to show
the Little League "how wrong it is." That makes it a different case.

A good argument can be made that purely private, noncommercial
associations have a right to decide for themselves whom to admit as
members. See Justice O'Connor's concurrence in Roberts v. JayCees.
That would result in allowing some organizations to do hateful
things. As when the Nazis march in Skokie, that is the price of
liberty. Protection for freedom of association also results in
allowing some organizations being permitted to do excellent things
that the current majority governments do not approve of.  Think of
Berea College v. Kentucky, where a private college wanted to educate
black and white children in the same classrooms, in violation of the
law of the state.  Associational freedom cuts both ways -- as does
protection of the right to dissent in all contexts.

But in the Boy Scouts case, the Court does not need to address this
broader, more difficult argument. It can be resolved on the
relatively simple (and I would have thought, prior to this
discussion, uncontroversial) proposition that no one has the right to
assume leadership in a private expressive organization when he
disagrees with the organization's message.

-- Michael McConnell (U of Utah)

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