When Liberty Is the Price of Homophobia
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Published in: January-February 2010 issue.


A Right to DiscriminateA 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.

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