Boy Scouts Case/Ministerial Exception

[LoAndEd at AOL.COM]

The Scouts and their amici have filed their briefs in the Dale case (not yet
on Westlaw).  The Scouts' brief is interesting in several respects, most of
which we've already discussed at length on-list.  For example, the Scouts
rely heavily on Hurley and on O'Connor's Roberts concurrence; they devote
only two paragraphs (pp. 35-36) to the argument that they should prevail
under the Court's Roberts doctrine, and only then on the view that an
association may exclude members whose *views* are at odds with positions
espoused by the club membership.  (As I've discussed before, even apart from
the fact that the Scouts had not associated together to "espouse" any view
about homosexuality, this argument should fail because (i) Dale was
discharged because of his status as a gay man, not because of his "views";
and (ii) New Jersey law does not, in any event, prohibit discrimination in
public accommodations on the basis of a person's "views" (rather than his
sexual orientation).)  The Scouts also expressly urge the Court to hold, as a
categorical matter, that "private, non-commercial, expressive associations
have the *unqualified* right to select their own leadership" (p.34),
presumably without regard to any inquiry as to the effect on the
association's expression, and without regard to the strength of the state's
interest.

I am posting, however, not to rehash these questions, but instead to bring
attention to a point made in the Scouts' brief that actually is directly
related to Religionlaw!  The Scouts cite a bunch of "ministerial exception"
cases, and state that "[a]fter Employment Div. v. Smith, these decisions can
best be explained as arising from freedom of expressive association."  (p.32
n.8)  In other words, not from the Free Exercise Clause, and not from Title
VII itself.  I understand why the Scouts would make this argument, since
their claim is one of Free Association.  But what do others think of the
claim?  Would anything important turn on the question whether the exception
derives from associational, rather than FE, rights?

Marty Lederman (in my private capacity)