Court's decision on gay Scouts unlikely to end discussion on `freedom of association'.

Although the court of last resort has given the Boy Scouts of America permission to bar gay leaders and members from its ranks, there may be no end to the discussion--or a new phase of litigation--over that slim-majority decision.

That, in fact, may be all that Court watchers and constitutional scholars can agree on following the 5-4 opinion that came on the last day of the Supreme Court's 1999-2000 term. (Boy Scouts of America v. Dale, No. 99-699, 2000 WL 826941 (June 28, 2000).)

It was an opinion in which Chief Justice William Rehnquist said the Court would "give deference to an association's assertions regarding the nature of its expression"--a statement that dissenting Justice John Paul Stevens characterized as "astounding" and "astonishing." It was an opinion that the Boy Scouts lauded for"allow[ing] us to continue our mission of providing character-building experiences for young people" and civil rights groups denounced as creating "an escape hatch for all civil rights laws."

The Court ruled that the Boy Scouts can legally exclude gay members because it found that opposition to homosexuality was part of the group's "expressive message." This interpretation of the First Amendment's Freedom of Association Clause is what allows groups like the Ku Klux Klan to exclude African Americans from its membership and why a Nazi group doesn't have to admit Jews, said Erwin Chemerinsky, a constitutional law professor at the University of Southern California, Los Angeles.

The Boy Scouts' case emerged after the leadership revoked Eagle Scout James Dale's membership when a local newspaper published a story and photograph identifying him as an officer of the Rutgers University Lesbian/Gay Alliance. The Boy Scouts told him that its revocation decision was based on the fact that he is gay. (Boy Scouts Lose Gay Exclusion Case, TRIAL, Oct. 1999, at 91.)

Dale sued under New Jersey's antidiscrimination statute. The state supreme court ultimately held that the Boy Scouts are a public entity that must comply with that statute. At issue on appeal to the Supreme Court was whether that law violates the Scouts' right to associate and its right to free speech. The Court held that it does.

Rehnquist wrote, "A state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association."

Chemerinsky said that, far from being merely a case about gay rights and the Boy Scouts, this case will have broad implications for civil rights in general.

"What's troubling to me is that it says that a group gets to define its own expressive message, even in the course of litigation," Chemerinsky said, noting that the majority accepted at face value the Boy Scouts' assertion that it opposes homosexuality--an assertion found primarily in briefs supporting the litigation rather than in scouting policy or the group's literature. "I think this makes it much easier for organizations that want to discriminate to avoid state [antidiscrimination] laws," Chemerinsky said. "It means that any group that wants to discriminate can simply say, `Our expressive message is a discriminatory one,' even if they've never expressed it previously."

On the majority's acceptance of the Boy Scouts' characterization of itself, Stevens wrote in the dissenting opinion, "This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional fight was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority itself acknowledges, `we are obligated to independently review the factual record.' It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims."

John Eastman, a constitutional law professor at Chapman University School of Law in Orange, California, wrote an amicus brief on behalf of the Claremont Institute's Center for Constitutional Jurisprudence, a conservative think tank that supports the Boy Scouts' right to exclude homosexuals.

"At its core, this is a vindication of the First Amendment right to freedom of association," Eastman said. "The Court has long recognized the right to associate with others to further political speech. The Boy Scouts are fostering certain views among the people who are affiliated with the organization that it hopes to generate and perpetuate in the next generation of citizens. That's what the organization is about--teaching this kind of devotion to God and country and family."

Eastman said that forcing the Boy Scouts to admit gays into the organization is contrary to its purpose, which includes teaching boys about "the importance of being morally straight."

"[A gay leader] can't teach the principle that homosexual conduct is immoral, which is the Boy Scouts' view," Eastman said. "It is a view that is consistent with thousands of years of political philosophy and most major religions--that homosexual conduct, like adulterous conduct or incest or some other things that the Boy Scouts teach [against], is just fundamentally wrong."

Dale's argument

Evan Wolfson, senior attorney for Lambda Legal Defense and Education Fund, a gay rights advocacy group in New York City, argued Dale's case before the Supreme Court. Like Chemerinsky, he took issue with the Court's willingness to accept the Boy Scouts' assertion that it teaches that homosexual conduct is not morally straight and that it does not want to promote homosexual conduct as a legitimate form of behavior.

"Because [the majority's acceptance of the Boy Scouts' self-definition] is so superficial and so unelaborated, I think the opinion just exudes the feeling that the majority, itself, would not stand by this approach in subsequent cases," Wolfson said.

But he said he sees a "silver lining in this otherwise hard-to-defend decision" in that it presents the opportunity to Scout members, parents, and others who donate time and money to the organization to "exercise their right to disassociate themselves from this discrimination."

Eastman predicted that the backlash Wolfson envisions is unlikely to have much effect on the Scouts. However, both men said the Court's decision could spawn a new wave of litigation against the group. For example, troops are often sponsored by government entities, such as public schools and police and fire departments, that must comply with state antidiscrimination laws that protect homosexuals. Can these public agencies be sued for funding an organization that discriminates on the basis of sexual orientation?

"Unfortunately, this Supreme Court decision does not end the litigation," Eastman said.

On a broader scale, Chemerinsky said that the most immediate danger of the Court's decision lies in how other groups may use it.

"Once they [the Court's majority] have written the opinion this way, then I don't know how they can distinguish it from when the next group comes forward and says, `Well, we've always excluded blacks. We don't have it in any of our official messages, but that's how we're defining our position now.' I think that what you're going to see is that groups that want to discriminate have now been given much more legal authority to do so."