A Right to Discriminate?

A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association

Andrew Koppelman
with Tobias Barrington Wolff
Copyright Date: 2009
Published by: Yale University Press
Pages: 192
https://www.jstor.org/stable/j.ctt1npv2x
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  • Book Info
    A Right to Discriminate?
    Book Description:

    Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members?

    Does the state have a legitimate interest in regulating the membership practices of private associations? These questions-- raised byBoy Scouts of America v. Dale, in which the Supreme Court ruled that the Scouts had a right to expel gay members-- are at the core of this provocative book, an in-depth exploration of the tension between freedom of association and antidiscrimination law.

    The book demonstrates that the "right" to discriminate has a long and unpleasant history. Andrew Koppelman and Tobias Wolff bring together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations.

    eISBN: 978-0-300-15592-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Introduction
    (pp. ix-xiv)

    James Dale joined the Boy Scouts of America (BSA) when he was eight years old. He had wanted to join when he was even younger because his older brother and his father were members. He was an enthusiastic Scout, rising to the rank of Eagle, the highest honor the BSA bestows. “Boy Scouts was community,” he later explained. “It was a place where I felt I belonged. I did other things. I was in soccer and basketball. But nothing fit as well as the Boy Scouts. I felt I didn’t have to be the best football player or run the...

  5. 1 Origins of the Right to Exclude
    (pp. 1-24)

    This book examines the idea that there is a freedom of association that creates a right to resist antidiscrimination law.¹ Where did this idea come from? There are two answers to this question because the idea of a right to exclude has two sources. One of these, the older of the two, is broadly libertarian. The newer source is narrower, rooted in the First Amendment’s protection of free speech.

    The earlier, libertarian rationale implies such a broad right to exclude that it is inconsistent with nearly any antidiscrimination law. Some courts adopted it, but this was an innovation of the...

  6. 2 Signs of the Times: The Dale Opinion
    (pp. 25-42)

    All antidiscrimination laws are unconstitutional in all their applications.

    Citizens are allowed to disobey laws whenever obedience would be perceived as endorsing some message.

    Both of these propositions are absurd. However, the Supreme Court’s opinion inBoy Scouts of America v. Dale¹ stands for at least one of them, and perhaps both. The Court’s disastrous opinion offers a useful cautionary lesson in First Amendment jurisprudence: determinations of what is protected speech cannot defer either to individual speakers or to the culture as a whole, because such deference produces bizarre results.

    James Dale joined the BSA when he was eight years...

  7. 3 The Solomon Amendment Litigation and Other Consequences of Dale
    (pp. 43-62)

    The pathological implications ofDalewere brought to the Court’s attention in a striking way inRumsfeld v. FAIR,¹ and the Court, unsurprisingly, retreated from those implications. This chapter will show how this happened. The destructive potential ofDalewas underestimated by many in theFAIRlitigation, notably the plaintiffs, who operated under the sincere but misplaced belief that their arguments were advancing the antidiscrimination cause.

    More than any other area of constitutional law, the doctrines that govern the speech clause of the First Amendment suffer from the risk that form may come to override function. The potential ambit of...

  8. 4 The Neolibertarian Proposal
    (pp. 63-80)

    So the Supreme Court has gone wrong in its approach to freedom of association, and the law is in disarray. What ought the law to look like, then?

    A prominent group of scholars, whom I will refer to as “neolibertarians,” argue that noncommercial private associations should be given an absolute right to discriminate. (The restriction of the right to noncommercial associations is what makes them “neo.”) The group is a distinguished one, including Judge Michael McConnell and professors David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. (As we saw in Chapter 2, Justice...

  9. 5 Is the BSA Being as Bad as Racists?: Judging the BSA’s Antigay Policy
    (pp. 81-104)

    All that we have considered so far is whether there should be an absolute right to discriminate. But what about the other side of the equation—the state interest in regulating private associations? Why should the state want to do this? What legitimate reason could there be for the state to interfere with the internal membership decisions of a private association such as the BSA?

    The BSA’s discriminatory policy raises a moral concern. This chapter lays that concern out in detail. The next chapter will work out its institutional implications.

    The moral status of the BSA’s policy has become an...

  10. 6 Why Regulate the BSA?
    (pp. 105-120)

    The previous chapter considered the evidence that the BSA is engaged in morally malign discrimination—discrimination that is as wrongful as racist discrimination. This argument leaves unresolved the question of whether it is appropriate for the law to intervene against the organization. Quite a lot of morally problematic conduct is not suitable for legal regulation. Why should the law be involved here?

    The question of the law’s legitimate interests bears directly on the question of how broad the freedom of association ought to be. As William Marshall observes, “[t]he definitional questions of where a liberty interest begins and a state...

  11. Notes
    (pp. 121-168)
  12. Index
    (pp. 169-178)