Don't Ask Us to Explain Ourselves, Don't Tell Us What to Do: The Boy Scouts' Exclusion of Gay Members and the Necessity of Independent Judicial Review
In Boy Scouts of America v. Dale, the U.S. Supreme Court held by a five to four majority that the Boy Scouts of America is entitled to ban gay persons from membership despite New Jersey's prohibition against sexual orientation discrimination. The Dale majority sharply departed from the Court's long line of expressive association cases, in which it has rejected the claims of private clubs that application of civil rights laws to their membership policies violates their associational rights. This Author argues that by "reading" the plaintiff in Boy Scouts of America v. Dale as a cipher for gay sex, and by accepting the Scouts' claim of conflict without further inquiry, the Supreme Court takes the model of a judiciary neutral with respect to the marketplace of ideas and distorts it into a judiciary powerless to accord sufficient weight to a state's interest in protecting civil rights. The Author reviews evidence of the Boy Scouts' moral expression and demonstrates that there are ample grounds to support the New Jersey Supreme Court's conclusion that the Scouts' exclusionary policy conflicts so directly with the organization's expressed views that the ban is explainable only by animus. The Author concludes with a concern for future civil rights litigation: that a state's nondiscrimination protections--particularly for groups not afforded heightened constitutional scrutiny--effectively may be eviscerated with nothing more than a potential excluder's say-so.
12 Stan. L. & Pol'y Rev. 87 (2001)