Michael T. Osborne, Erecting Prejudice into Legal Principle: Boy Scouts of America v. James Dale, 36 Gonz. L. Rev. 515 (2001).[PDF] [Westlaw] [LexisNexis]
The Boy Scouts of America is in serious trouble. Founded in 1910, the Boy Scouts aims to teach young boys the values of leadership and clean living by encouraging participation in camping and other outdoor activities. When it revoked Eagle Scout James Dale’s adult membership because of his homosexuality, the Boy Scouts asserted publicly that homosexuality was incompatible with its emphasis on clean living. Despite the absence of an official anti-homosexual policy, the Boy Scouts claimed a constitutional right as a private organization to revoke James Dale’s adult membership because of his homosexuality.
The Supreme Court handed the Boy Scouts a narrow victory by affirming the Scouts’ allegedly official anti-homosexual policy in Boy Scouts of America v. Dale. A bare majority in Dale II accepted the notion that a large national organization’s assertions about certain social groups’ alleged incompatibility with the organization’s apparently implied purposes constituted a valid exercise of that organization’s First Amendment freedom of expressive association. Once the Court accepted the Boy Scouts’ assertions about the incompatibility of homosexuality with its purposes, the majority in Dale II then failed to apply judicial scrutiny to those assertions. Even more disturbing is that the majority’s rationale in Dale II allows large national public organizations to discriminate openly against social groups that these organizations consider undesirable. The organizations disguise the discrimination by citing official policies against including those groups, which apparently does not warrant judicial scrutiny.… Read more