A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association
by Andrew Koppelman, with Tobias Barrington Wolff
Yale University Press
178 pages, $38.
IT WOULD SEEM self-evident to readers of this publication that the exclusion of gays or lesbians from a public association is a violation of basic civil rights. The Boy Scouts of America’s (BSA) rejection of gays from membership seems like an obvious injustice, so perhaps a conservative analysis of the Boy Scouts of America v. James Dale case is necessary to explore the complex and fascinating stakes in this balance of rights. Andrew Koppelman claims he is simply making a conservative argument for a return to the previous state of jurisprudence concerning freedom of association, because the Dale ruling introduced substantial ambiguity into the law. Koppelman is a professor of law and of political science at Northwestern University and has previously written on same-sex marriage and gay rights more broadly. Tobias Barrington Wolff—who wrote the chapter on the Solomon Amendment for this book—is a professor of law at the University of Pennsylvania and was the LGBT policy advisor to the Obama campaign in 2008.
The BSA case received wide media attention in the 1990’s. James Dale had been a Boy Scout in New Jersey from age eight and had worked his way up to the rank of Eagle Scout. After turning eighteen he became an assistant scoutmaster. He started college at Rutgers University and in his sophomore year became co-president of its lesbian/gay student group. After an article in a local newspaper mentioned him attending a workshop on the needs of gay and lesbian teens, he was abruptly expelled from the BSA. He received assistance from Evan Wolfson (of the Lambda Legal Defense and Education Fund), who has argued the case for gay marriage across the U.S.
Dale filed suit in 1992 in the New Jersey Superior Court alleging that the BSA had violated the state’s statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The court granted summary judgment for the BSA in 1995. The appeals court reversed this in 1997, and in 1999 the New Jersey Supreme Court sided with Dale, agreeing that the antidiscrimination law did not violate the BSA’s First Amendment right to expressive association. Wolfson argued the case for Dale before the U.S. Supreme Court in 2000 and repeatedly brought home the point that following New Jersey’s nondiscrimination law is not a “burden on Boy Scouts’ ability to convey or express any message with regard to sexual orientation or homosexuality,” which message, in any case, had never been explicitly conveyed to members or scoutmasters before. Chief Justice William Rehnquist delivered the majority opinion in favor of the BSA. Rehnquist was among the solidly conservative Justices who voted against gay rights in Bowers v. Hardwick (1986), Romer v. Evans (1996), and Lawrence v. Texas (2003).
At issue in Dale were two elements of First Amendment rights: freedom of speech and of assembly. The BSA argued that New Jersey’s antidiscrimination law violated its right to choose its own members, and that forcible inclusion of a homosexual violated its freedom of speech, namely, to express opposition to homosexuality. Although the BSA had never previously expressed any explicit opposition to homosexuals, it claimed that this position was to be found in the Scout Law and Scout Oath which expect members to be “clean” and “morally straight.” The court held that the BSA was a place of public accommodation and not a private group that should be exempted from the New Jersey law. For example, antidiscrimination law could not be applied to a private dinner party. However, the court agreed with the BSA that application of the antidiscrimination law burdened the BSA’s expression of a viewpoint in the absence of a compelling state interest to override that burden.
The Court gave great deference to the BSA in asserting how significant the objection to homosexual conduct was to its mission. This deference is critically problematic to Koppelman. He explains that prior to Dale, freedom of association claims followed a “message-based approach.” An association could legitimately claim exemption from statutes that would force it to accept members that would undermine its central message or ability to convey that message. Such cases have most commonly revolved around issues of race, religion, and gender. For example, it is the Ku Klux Klan’s constitutional right to refuse membership to African-Americans, Catholics, or Jews, because its political message is explicitly opposed to those groups. Koppelman argues that Dale sets a dangerous precedent that makes it far too easy for associations to justify discrimination simply by claiming that their act of discrimination is itself a constitutionally protected expression of a political view (even when the specific form of discrimination has never been central to its message or mission). Koppelman points out that such a claim has a cost: a group must publicly avow its (perhaps) secretly held prejudices. The consequence for the BSA has been a significant decline in membership and funding, dissention from local troops, and a loss of free municipal meeting places in locales that have gay antidiscrimination statutes.
The implications of Dale were so problematic that the Supreme Court itself steered clear of them in a 2006 decision also regarding gay rights: Rumsfeld v. Forum for Academic and Institutional Rights (FAIR). In response to the military’s anti-gay discrimination and “Don’t ask, don’t tell” policy, many law schools began enforcing their own antidiscrimination policies by excluding military recruiters for the Judge Advocate General’s Corps (JAG). The military and Pentagon were enraged about this and instigated Congress to pass the “Solomon Amendment,” whereby federal funding could be withheld from institutions that barred military recruiters from campus. The statute was broadened in 1999 to include funding for an entire university and not just a protesting law school. Fearing the power of the purse, universities caved. In response, some law schools and professors brought suit against the Pentagon, and these cases eventually made their way up to the Supreme Court after decisions favoring the law schools in the U.S. Court of Appeals.
In a way, the tables had been turned: a law forced an association to include people espousing a message (anti-gay) that was antithetical to the association’s ideological views (anti-discrimination). Indeed, in granting a preliminary injunction in favor of FAIR, the U.S. Court of Appeals, Third Circuit, analogized from Dale that the Solomon Amendment was an unconstitutional infringement on the university’s rights to expressive association, since admission of JAG recruiters forced the school to endorse the military’s anti-gay message. In an unusual unanimous opinion (written by Chief Justice John Roberts), the U.S. Supreme Court instead avoided its own precedent in Dale by reasoning that recruiters were not being admitted as members of the university. Furthermore, it held that the Solomon Amendment regulated conduct, not speech. As such, admitting military recruiters on campus does not indicate the universities’ endorsement of anti-homosexual policies, nor does it constitute compelled speech. Finally, the court held that Congress’s con- stitutional right to “raise and support armies” authorized it to force universities to accommodate recruiters even without the threat of withholding funds.
Although Koppelman opens by claiming to make a conservative argument against the Dale case, he does, of course, have a good measure of empathy toward gays. He argues against the “neolibertarian” approach to antidiscrimination law. Neolibertarians’ fundamental distrust of the government would countenance only minimal regulation of individual and association freedom to discriminate, trusting instead in the beneficent effects of the free market. Koppelman instead points out that the BSA’s exclusion of gays is equivalent to the racism of segregation and anti-miscegination laws. It is all the more insidious because it impacts children, especially gay youth, who cannot vote with their feet and go to a gay-friendly scouting program. The BSA exclusion also stigmatizes homosexuality in essence and not just in conduct (as does the Catholic Church)—a point the liberal Justices repeatedly tried to tease out in oral argument, to little effect.
Ultimately, Koppelman argues that antidiscrimination law “is intervening to try to change social meanings,” and he believes that the courts should support such efforts to regulate even non-commercial associations within the narrow limits of the “message-based approach.” Therefore, Dale was wrongly decided. Conservative originalists like Scalia and Thomas would probably howl reading this analysis—it reeks of “activist” judging. Consider, however, that the authors of the Declaration of Independence and the Constitution could make grand pronouncements on the equality of all men, “unalienable Rights,” and the Blessings of Liberty while overlooking slavery and the disenfranchisement of women. An originalist approach to Constitutional issues of civil rights is grossly inadequate to the historical evolution of American and global society. The courts should not obstruct courageous legislation to equalize civil rights protections for underrepresented groups. And the courts should bravely protect minorities from the tyranny of a majority claiming its freedom is diminished by the freedom of others. Most notoriously, there is no evidence that heterosexual marriage needs to be defended against loving gay couples.
Justice John Paul Stevens, in his stirring dissent in Dale, cited Justice Louis Brandeis’ advice that “we must be ever on our guard, lest we erect our prejudices into legal principles.” Stevens concluded: “If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent.” We can only hope that the Supreme Court, with newly installed Justice Sotomayor, will be bold in its future cases, one of which, gay marriage, will inevitably wend its way up to the Court.
Vernon A. Rosario, a child and adolescent psychiatrist in Los Angeles, is an assistant clinical professor in the UCLA Department of Psychiatry.
