Constitutional Opinions: Strange Accommodations
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin Strange Accommodations T he U.S. Supreme Court seems to have been anxious to sidestep the most contentious social issues in the past year, but other...
...Recognizing associational rights of this kind need not be totally disruptive to existing civil rights law, however...
...At a time when we have so much dispute about moral standards for government service, it might be particularly helpful to recognize that private organizations can uphold higher standards than government and need not transform themselves into crusading advocates to claim their constitutional right to do so...
...While acknowledging that the Scouts had a long-standing policy against gays, the court found that this was not essential to the purpose of the scouting movement which in other respects stressed its desire to be open and inclusive, in the manner of a "public accommodation...
...Supreme Court to overturn this result, it would have to find that New Jersey's law, as interpreted by its own courts, violated some protected constitutional right of the Boy Scouts...
...The New Jersey court found that Dale was denied eligibility to serve as a scoutmaster not because he sought to advocate anything contrary to the actual principles of the Scouts in the course of his scouting work, but because of who or what he was—an officer of a university gay—rights group...
...It remains up to the New Jersey courts to make the definitive interpretation of the New Jersey law invoked in Dale...
...But for the Court to take up a wider defense of associational freedom, it has to be ready to acknowledge that private groups may be more selective—may make more distinctions, or, if you like, discriminations—than would be possible or appropriate for the government itself...
...The New Jersey court was quick to distinguish the claim against the Boy Scouts...
...And if clubs, why not businesses...
...But this attractive path now has a lot of precedent against it...
...Private associations, he said, "have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs...
...Moreover, the New Jersey court's ruling has the strange implication that if the Boy Scouts had been more insistent about holding to an anti-gay message, they could have been allowed to exclude gays—so they are, in effect, penalized for holding to a moderate or somewhat tolerant position...
...But this turns out to be a complicated and difficult argument...
...T he seemingly obvious way out of these difficulties is simply to find a freedom to associate that does not depend on involvement in any particular advocacy or "expressive" activity...
...Supreme Court seems to have been anxious to sidestep the most contentious social issues in the past year, but other courts have not had the same inhibitions...
...And then wouldn't the whole argument unravel the civil rights laws we have been building up since the 1960's...
...nor any problem in forcing all private clubs in New York to admit women (Club Association v. New York, 1988...
...In a seemingly closer precedent, the Court ruled in 1995 that Massachusetts authorities could not force the organizers of a St...
...Supreme Court can or should reverse the result by viewing the Boy Scouts as engaged in expressive activity protected by the First Amendment...
...But what is that right...
...In all of these cases, the Supreme Court persuaded itself that forcing these organizations to admit women would not change their essential character or force the organizations to express a different viewpoint...
...In a free country, people should be free to form private organizations with those they choose to associate with and to exclude those they don't want to associate with...
...James Dale had been active in the Boy Scouts since he was eight yearsold and was only expelled from his position as an assistant scoutmaster when Scouting officials were alerted to an article in a local newspaper highlighting Dale's role in a gay rights advocacy group at his college...
...In the New York club case, Justice Scalia made a point of emphasizing that associational rights need not be tied to public advocacy or expression...
...The ruling in Dale v. Boy Scouts held that a law banning discrimination in "public accommodations" could apply to a membership organization like the Boy Scouts, even when it meets in private homes...
...On the face of it, there is something odd about the argument that a court knows better than a private organization which members are consistent with that organization's purposes...
...To force the private organizers of the parade to admit such a group, the Court held, would deprive them of their right to determine for themselves the expressive content of their parade...
...It has been recognized by the Supreme Court in a number of cases but generally in cases where groups could claim that their association was related to some aspect of advocacy or expression protected by the First Amendment...
...Supreme Court would right this ruling...
...To reach this result the Trenton jurists had to argue that a "place of public accommodation" need not be in a publicly accessible place or even in any particular physical "place...
...In fact, this is not so odd as it seems...
...A number of critics insist the law violates the Boy Scouts' freedom of association...
...In August, the New Jersey Supreme Court stirred a fair bit of controversy with its ruling that the Boy Scouts must allow a gay activist to serve as a scoutmaster...
...If clubs were allowed to exclude women, then wouldn't they be allowed to exclude blacks...
...they thereby foster diversity and act as critical buffers between the individual and the power of the State...
...The American Spectator • October 1999 49...
...The most important precedents are those dealing with all-male clubs: There is no constitutional problem, the Supreme Court has held, in requiring the Jaycee (Junior Chamber of Commerce) clubs to admit women against their will (Roberts v. Jaycees, 1984...
...but if you want to be respectable, then the state reserves the right to classify you as a "public accommodation" and impose whatever norms of public respectability the state (or its judges) finds appropriate to that status...
...Freedom of association is not mentioned in the Constitution...
...But the other courts were parsing similar language in generally parallel statutes...
...By just this reasoning one can argue that forcing the Boy Scouts to admit girls would not change its character...
...The Court has always insisted that commercial advertising has less protection than other forms of speech under the First Amendment...
...The premise of the New Jersey judges comes down to this: If you are willing to cast yourself as a hate group, then you can claim First Amendment protection for your extremist stance...
...For the U.S...
...er club memberships (Rotary International v. Rotary Club, 1987...
...Patrick's Day parade in Boston to admit a group which sought to march as an avowedly Gay and Lesbian Irish American contingent (under a banner proclaiming themselves as such...
...The Court has already taken a few steps down that road, but it may be rightly uneasy about going much further...
...It doesn't require much perspicacity to recognize that the role of private associations doesn't become less important in "transmitting shared ideals and beliefs" when a particular organization is very large or its ideals relatively broad and consensual...
...At least as the First Amendment case law now stands, all sorts of disqualifications for government aid or "entanglement" suddenly emerge when an organization is classified as religious...
...And under the New Jersey court's ruling, it seems entirely open for the next challenger to demand that the Boy Scouts become Boy Scouts with Girls, at least in New Jersey...
...There are, in fact, hints of such a doctrine in existing case law...
...The problem isn't that the Jersey court ruling is so compellingly reasoned...
...nor any problem requiring the Rotary Clubs to do so, even with small-•4 It is not much more attractive to argue that the Boy Scouts are protected by religious freedom guarantees...
...The Boy Scouts would be better off as a hate group...
...JEREMY RABKIN is a professor of government at Cornell University...
...To start with, the Court might limit the claim to nonprofit membership organizations...
...But if it does have a certain logic, it is all the more disturbing for that...
...This strained interpretation has been rejected by federal courts and the top courts of several other states...
...It would be easy to argue, in the same spirit, that commercial restaurants, hotels, and other such "public accommodations" remain subject to non-discrimination laws while non-commercial membership organizations should be able to claim greater protection for their associational freedom...
...The Court might have to do a fair bit of backtracking to establish a secure reprieve for the Boy Scouts...
...Of course, what drove the Supreme Court to such reasoning was the analogy pressed by feminist advocates between sex discrimination and race discrimination...
...Is it fair, then, is it even sensible, to invite a group like the Boy Scouts to qualify for one sort of immunity at the risk of taking on a different sort of legal disability...
...T]he constitutional shelter afforded such relationships...from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty...
...It isn't at all clear that the Court's narrow conservative majority has the stomach for such rethinking...
...A number of conservative commentators denounced this ruling and then expressed the hope that the U.S...
...But the case is not actually quite so easy...
...In 1958, for example, the Court held that Alabama could not demand that the National Association for the Advancement of Colored People make public its membership, lest this discourage people from joining and thus inhibit the NAACP's advocacy work...
...And he made the further point that New York's law may not have made a clear or convincing distinction between the private social clubs it sought to regulate and those fraternal lodges, often based on explicit ethnic criteria (like the "Jewish War Veterans"), which New York's law explicitly exempted...
...On the other hand, it is not much more attractive to argue, as the Boy Scouts tried to do in Dale, that they are protected by religious freedom guarantees because their opposition to homosexuality is grounded in a belief in God...
...48 The American Spectator • October 1999 But it is not obvious that the U.S...
...In the Jaycees case, for example, Justice Brennan spoke in expansive terms about associational freedom, relating it not to expressive advocacy but to wider claims of liberty...
...If hiking and knot-tying are "expressive," then perhaps dancing and handcuffing are too, and we come to the rather bizarre result that topless dancing is a protected "expressive" activity and perhaps also the nastier activities in sado-masochistic clubs...
...To take an obvious example, public schools frequently sponsor recruiting events for the Boy Scouts while such ventures for actual churches would be regarded by many authorities as constitutionally improper...
Vol. 32 • October 1999 • No. 10
