an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members?Has the state any legitimate interest in regulating their membership practices?Are the Scouts really being as bad as racists when they discriminate against gay people? What is the law now, and what should it be?
All of these questions were raised by Boy Scouts of America v. Dale(2000), in which the Supreme Court ruled that the Scouts had a right to expel its gay members.Since then, a growing number of scholars have developed a new libertarianism, claiming that a thriving civil society requires that all noncommercial associations should have an absolute right to discriminate.
In our new book, A Right to Discriminate?How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association, Tobias Barrington Wolff and I show that this “right” has a long and unpleasant history.First devised specifically in order to authorize exclusion of African-Americans from public accommodations, it remains fundamentally inconsistent with the purposes of antidiscrimination law. The Court in Dale reasoned as follows:The Scouts are an association that “engages in expressive activity” protected by the First Amendment.Forced inclusion of a member therefore violates the First Amendment if it “would significantly affect the Boy Scouts' ability to advocate public or private viewpoints.”The Boy Scouts assert that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the requirement that Scouts be “morally straight” and “clean.”The Court must give deference to an organization’s assertions regarding the nature of its expression.“[W]e must also give deference to an association's view of what would impair its expression.”
The Court’s opinion does not state a clear rule to guide lower courts, but this argument implies that all antidiscrimination laws are unconstitutional in all their applications.It permits any defendant, in litigation, to allege a message that to which courts must defer.The Court, evidently aware of this danger, added, after these passages on deference:“That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.”But, since all the Scouts did was assert precisely that, this sentence makes it entirely mysterious what the rule is after Dale.The lower courts haven’t been able to figure it out, and have essentially confined Dale to its facts.
A notable group of commentators, whom we call the neolibertarians, have responded to Dale’s ambiguity by advocating a sharper rule than any declared in the Dale opinion:an absolute right of noncommercial associations to exclude unwanted members. (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. The neolibertarian arguments are, however, only slightly modified versions of old, discredited libertarian objections to the existence of any antidiscrimination law at all.The older, minimal-state libertarianism rests on three premises:(1) that a more-than-minimal state violates citizens’ rights, (2) that government cannot be trusted to do more than prevent force and fraud, and (3) that an unregulated private sector can be relied on to produce benign results.Libertarianism has failed as a normative theory because all three premises are often false.The neolibertarian modification is to confine all three premises so that they apply only to noncommercial associations.But even thus restricted in scope, there is no reason to think that any of them is true as a general matter.
All of the recent agitation for a judicially broadened freedom of association is misguided.The basic problem is analogous to the problem of how much economic regulation there should be.The arguments for free markets are not only economic.There are powerful virtues of character that can be promoted by unregulated economic interaction.But after the case has been made against Communism as an economic system, there is an enormous range of possibilities remaining, and the rejection of Stalinist centralism tells us little about the case for any particular regulation.Similarly, even if it is hugely important that there be a great deal of unregulated association, very little follows about the boundary between the regulated and the unregulated.It certainly does not follow that this boundary ought to be determined by the courts, which is what a constitutional right amounts to in practice.
The Boy Scouts case illustrates the importance of allowing the state to pursue legitimate antidiscrimination interests.The discriminatory policy hurts the children who participate in the Scouts.It is not endorsed by many of the members, and there is no reason automatically to take the side of the Scout leadership in this internal dispute.The state also has a legitimate interest in making sure that one of the central institutions of socialization of children – as a matter of fact, the largest youth organization in the country – is available to all children in a nondiscriminatory fashion, and is not torn apart by a rash decision to join in the culture wars.
Even if a sphere of society works best if it is mostly unregulated, this does not settle the question whether any particular regulation is appropriate.(I’ve been arguing here for some time that religious objections to antidiscrimination laws often ought to be accommodated, but that is a policy argument, not a proposal to enact a constitutional principle, and its logic, which is based on the availability of many alternative providers, does not apply to a market-dominant behemoth like the Boy Scouts.)The situation with respect to noncommercial associations is much like that with respect to businesses.A free market is a good thing, and capitalist economies generate enormous wealth.The case for or against any particular regulation must nonetheless be made at retail.Efforts to produce more general rules produce astounding pathologies.
Chapter One of the book examines the case law on free association up to the Dale case.Chapter Two scrutinizes the reasoning in Dale.Chapter Three examines the Court’s latest foray into the freedom of association question in Rumsfeld v. FAIR, concluding that the Court there contained the worst excesses of Dale, while leaving the law fundamentally unsettled. Chapter Four addresses the neolibertarian proposal.Chapters Five and Six look more closely at the Scouts’s policy, to try to discern whether it presents a problem that the state can legitimately address.Chapter Five argues that the Scouts’ policy is, in pertinent ways, the moral equivalent of racial discrimination.Chapter Six offers further reasons for intervention:the rule laid down by Dale is likely to harm children, systematically frustrate parents’ preferences, and impair the Scouts from performing just those mediating functions of associations that the defenders of free association are eager to protect. Posted
by Andrew Koppelman [link]