The dissent in Dale

[Michael deHaven Newsom]

I think that I agree with the general thrust of Esser's remarks.  For me
the thing that is wrong with the case is the characterization of the Boy
Scouts as private.  That strikes me as formalism run riot.  Alternatively,
if the Boy Scouts are private, expect to see any number of "disconnects" in
the future, as public institutions in some jurisdictions at least, end
their sponsorship of a homophobic "private" organization.  Also, expect to
see the development of competing organizations.  Not really such a bad
idea, afterall.

Michael deHaven Newsom
Howard University
School of Law

Will Esser wrote:

> I'm a bit troubled by Justice Stevens dissent in Dale,
> particularly his assertion that "[t]o prevail in
> asserting a right of expressive association as a
> defense to a charge of violating an antidiscrimination
> law, the organization must at least show it has
> adopted and advocated an unequivocal position
> inconsistent with a position advocated or epitomized
> by the person whom the organization seeks to exclude."
>  After a lengthy review of the Boy Scout's policies
> and manuals, Justice Stevens concluded that "[i]t is
> entirely clear that BSA in fact expresses no clear,
> unequivocal message burdened by New Jersey's law."
>
> The requirement that an organization's position be
> "clear" and "unequivocal" and something that has been
> "adopted and advocated" sounds similar to the
> requirement of "centrality" which was formerly
> required in the religion context.  Unless a position
> is central to the mission of an organization, it is
> likely that it may not be "unequivocally" stated in
> any documents.  Apparently, Justice Stevens would
> summarily reject any associational claim based on (a)
> an unstated doctrine of an organization [i.e. Cat
> Lovers Anonymous loses a claim to keep out a dog lover
> because that position is not stated in any doctrines]
> or (b) a stated position of the organization which the
> court interprets differently than the organization
> [i.e. the BSA says that "morally straight" means no
> homosexual leaders; Stevens thinks it has nothing to
> do with homosexuality].
>
> I have great difficulty with a court interpreting for
> an organization what its policies do and do not mean.
> This is not permitted in the religious context (i.e.
> no court is going to interpret what a religious
> doctrine means).  Why allow it in the freedom of
> association context, particularly when it involves
> interpretation of such subjective terms as "morally
> straight"?
>
> The majority's decision to simply accept the
> intrepretation given by the organization is much
> cleaner and simpler.  Any thoughts?
>
> Will
>
> =====
> "Too many people have enough religion to hate, but not enough to love."
>
> Will Esser
> Ad Majorem Dei Gloriam
> http://www.geocities.com/Heartland/Trail/3096
>
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