Scarberry v. McConnell--NOT (I hope)

[Andrew Koppelman]

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
________________________________________