Free Exercise Clause, freedom of association, and hard-core "no p referen...

[LoAndEd at AOL.COM]

The Scouts ask for a ruling that "private, non-commercial, expressive
associations
have the *unqualified* right to select their own leadership" (p.34).
Similarly, Eugene writes that Justice Stevens "might come to accept that all
nonprofit expressive associations (or maybe even all expressive associations,
period) should be free to select their leaders and sub-leaders without regard
to antidiscrimination law."  I understand from the previous Scouts thread
that many on this list would approve of such a bright-line rule.

Of course, the benefits of a bright-line rule are obvious (assuming the line
is, in fact, bright).  Two questions for proponents of such a rule, however:

1.  I recognize that the distinction between "commercial" and "expressive"
associations derives from O'Connor's concurrence in Roberts.  But can it be
defended?  Besides the nightmarish line-drawing problems inherent in such a
distinction, how can this distinction make sense, or be squared with
governing Free Speech doctrine?  If a noncommercial entity has an unqualified
right to choose its spokespersons (I assume "leaders" is a proxy for
spokespersons) without regard to all antidiscrimination laws, why isn't the
same true of commercial entities (at least with respect to those leaders who
engage in noncommercial speech)?  Do they have a lesser right to free speech?
 A lesser right not to be compelled to speak or to "choose its speakers"?
What about Bellotti and Pacific Gas & Electric?

2.  What about the race discrimination test case?  Do folks really think that
the Scouts/Sierra Club/Washington Legal Foundation/[fill in association of
your choice] should be able to refuse to hire black spokespersons/leaders?
If not, doesn't that suggest that courts must (as in Roberts) consider (i)
the importance of the state interest and (ii) the extent to which the
antidiscrimination law would, in fact, affect the organization's speech?

Marty (in my private capacity)