Boy Scouts

[Andrew Koppelman]

I am frankly perplexed by the Boy Scouts case.  I have no trouble deciding
what I think of the Scouts' cruel and stupid policy, but I think that they
may have a valid constitutional claim.  I was not surprised when cert. was
granted, and I think that they may win, especially with so able an advocate
as Michael McConnell on their side.

My perplexity arises when I try to figure out what I think the court's
opinion ought to say.  Michael is right to be troubled by the New Jersey
Supreme Court's attempt to declare what scouting stands for.  Hurley states
that "a speaker has the autonomy to choose the content of his own
message."  The Scouts, not the state of New Jersey, should decide what
scouting's message is.  That's why the scouts have a powerful claim.

The trouble lies in figuring out the boundaries of the claim.  If the state
must never interrogate the stated purposes of an association, even where
(as with the Scouts) the reason for the exclusion is not stated in any
official publication of the organization and may not even be known to most
of the members, then an expressive association claim is available to any
entity that wants to discriminate any time for any purpose.  The scouts had
no express policy about homosexuality, and their stated position was and is
that "boys should learn about sex and family life from their parents,
consistent with their spiritual beliefs."  Until they started kicking out
gays, no one would have guessed that their purposes included an antigay
purpose.  Indeed, the exclusion is the *only* evidence of that purpose.

Now, I think that an organization ought to be free to redefine its own
purposes if that is what it wants to do.  The fact that the scouts had no
position on homosexuality yesterday should not preclude them from taking
such a position today.  But doesn't that mean that any entity can make a
similar claim when discrimination is alleged against them?  Can't any
entity claim what the Scouts are claiming, that the very act of
discrimination shows an expressive purpose?

Freedom of expressive association should not be construed in a way that
completely guts antidiscrimination law.  The challenge for Michael, I
think, is offering the Court a rule of law that gives the Scouts a win
without entailing that result.

At one point in his filings to date (p. 7 of his reply brief), Michael
seemingly endorses O'Connor's concurrence in Roberts, which states that the
key question is whether the association is commercial or not.  "Respondent
does not claim that Scouting is a commercial venture, or that its
activities have a primarily commercial value or content."  (Michael, am I
interpreting you correctly?)  If this is right, and if the analysis above
is also right, it follows that only noncommercial associations are
practically exempt from antidiscrimination laws.  If that is right, then
the damage is substantially ameliorated, and then I might even willing to
sign onto Michael's brief.  But I'm not sure.  Not all noncommercial
associations have expressive messages that have anything to do with gays,
and I haven't thought through the consequences of giving them an absolute
right to discriminate.  If I did, I might come out the other way.






At 08:00 AM 1/26/00 -0700, Michael McConnell wrote:
>I think James Maule and others are being unfair about the Boy
>Scouts. It is true that "something has changed" in the past few
>decades, but it is not the organization or what it stands for: it is
>the emergence of a self-conscious gay rights movement. The Boy Scouts
>do not want to be dragooned into the sexual politics of our day; they
>want to stay out. They have no intention of aggressively preaching
>about sexuality (beyond a soft focus on male responsibility and
>traditional morality), but they do not want to become the pulpit for
>gay rights advocacy. That is why they resist appointing scoutmasters
>whose public advocacy and positions are dedicated to promoting the
>gay rights agenda. They make no inquiries about the private sexual
>activities of anyone (thus the comments about organizations wanting
>to control the lives of their members 24 hours a day 7 days a week
>are simply uninformed). But when someone is attempting to use the
>scouts to make a point about gay rights, or where his activity is
>sufficiently open and conspicuous that it would raise the issue among
>the boys, they balk.
>
>James Dale, the young man who wishes to be an
>assistant scoutmaster, came to the Scouts' attention when his
>picture appeared in the local newspaper, in his capacity as president
>of the Rutgers gay rights group, making a speech about the needs of
>gay teenagers. He has stated in the New York Times that his purpose
>is to "point out to [the Boy Scouts] how bad and wrong this policy
>is." He has argued in court that the Boy Scouts are misinterpreting
>the Scout Oath and law, and apparently thinks the government should
>correct this misinterpretation (which the New Jersey Supreme Court
>did).  He asserts the right to be "open" and "honest" about his
>sexuality in the context of the troop.
>
>The issue in the case, I think, is whether a private organization can
>define its own message and decline to appoint leaders who have a
>different message, or whose publicly proclaimed lives contradict that
>message. It is not the Boy Scouts who are attempting to impose their
>morality on others; it is the gay rights movement that is attempting
>to impose their morality on the Boy Scouts, and is using the power
>of the government to do it.
>
>
>
>
>-- Michael McConnell (U of Utah)


________________________________________

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
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