scouts-l Mail Archive for July of 2000: Ruminations
Thu Jun 29 2000 - 10:03:27 CDT
Well, THE decision came down 5-4, and BSA has a news release on its Web
The decision, and two dissenting opinions (21; 40; and, 3 pages,
respectively) -without commentary - are on three PDF files available, if
you choose to go there, at <http://www.lambdalegal.org>
Of interest, to some, might be the commentary on potential consequences,
by Andrew W. Jacobs, in the N.Y. Times (page A22).
I am not an attorney. But, as I read the Chief Justice�s opinion, it
seemed to rely on only one - not broadly circulated - 1978 expression of
policy which predated Mr. Dale�s expulsion. �Expression� being central
to the decision which held (without making a value judgment for the
Court) that a private organization has a First Amendment right to limit
association even if that association is discriminatory.
The 43 pages of dissent went into greater detail, and I suspect,
represents a blueprint for further litigation as it relates to youth
involvement; BSA as an employer; BSA in interstate commerce; etc.
This �favorable� decision may bear the seeds of future losses. If BSA
can discriminate on the basis of �Expressive Association�, so too can
funding sources (such as the United Way, Combined Federal Campaign,
etc.) discriminate. After all, the Supreme Court has equated money with
free expression (in the area of political contributions) -- the
corollary to that, of course, is that the withdrawal of funding is free
BSA has (narrowly) made its Constitutional point that as a �private
organization�, and not a �public accommodation�, it has a right to
discriminate or to establish its own associative policy. That may be
viewed as a significant and determinate right of Citizenship - one which
we can teach our youth.
That established, BSA would also be within its rights to redefine its
expressive association policy at any time it chooses. That could be
Several days ago D.S. wrote on Scouts-L that far more interesting than
the new Scout shorts was the announcement that �...ALL merit badge
booklets are slated for updating and revision over the next 5 years...
�. Could ALL of BSA�s publications be far behind with statements of
After all, BSA now enjoys the same rights as the KKK which has a broadly
disseminated and understood message.
[I�m currently reading Gary Wills� �Papal Sin - structures of deceit�,
the parallels seem inescapable.]