Boy Scouts--Can an organization be insincere, and so what if it c an be?

[Scarberry, Mark]

In response to Andy's post on the original thread:

Under principles of expressive association, as I understand them, the BSA
wins if it can show that having Dale as a part of its group (particularly as
a leader) would hinder it from expressing its chosen message and helping to
form the kind of character it has chosen to form in the boys. It's not clear
whether the BSA must meet that standard to win, but if it does, it should
win (absent some compelling interest sufficient to override 1st amendment
rights). If BSA can't meet that standard, we have an arguably open issue,
the resolution of which would involve substantial difficulty and
controversy. Let's call this standard the "Established Standard" or ES.

To apply the ES, we need to ask what the BSA mission is and we have to ask
what effect Dale's participation would have on that mission. If Dale's
sexual orientation, advocacy for gay issues, and leadership of a gay
students' organization would have had no effect on the BSA's mission, then
the ES is not met and (as noted above) the case becomes a much harder one.

Under the ES, I believe (1) nearly complete deference should be given to an
expressive association to interpret its own mission, and (2) at least
substantial deference should be given to the association to judge the effect
on the mission of allowing particular persons to be leaders. But as to each
issue, an organization might be insincere in an attempt to justify its
actions. (And as to (2) an organization's actions might be irrational enough
that the ES would not be satisfied.)

I suppose that if those with authority to act for an organization sincerely
believe its mission to be XYZ, then that is its mission. But the objective
facts of what the organization has said and done (and continues to say and
do) may be probative as to the sincerity of the belief (and perhaps as to
what the mission was at the time of the alleged actionable discrimination).
Thus if the BSA showed no interest in character development or in moral
issues until it was charged with sexual orientation discrimination, we might
well disbelieve its claim of a mission to promote traditionally moral
behavior. We might think instead that the leaders just disliked gay people.

Further, an organization may insincerely claim that inclusion of a person in
its leadership will harm its mission. Suppose the court was undecided
whether it was rational to think that inclusion of Dale as a leader would
hinder the BSA's mission. Suppose Dale then introduced into evidence a tape
recording of a secret BSA executive session during which the executives
agreed that Dale's leadership would have no detrimental effect on the BSA's
mission, but also agreed that homosexuals were "loathsome" and for that
reason decided to terminate Dale from leadership. Presumably the judge would
stop wrestling with the question whether the BSA could have acted rationally
in excluding Dale for its purported reason, because the purported reason was
not in fact the BSA's reason.

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

-----Original Message-----
From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
Sent: Monday, January 31, 2000 10:01 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.