scouts-l Mail Archive for July of 2000: Re: Supreme Court Decision
Monte Kalisch (montek@MONTEKCS.COM
Thu Jun 29 2000 - 09:00:21 CDT
Jim Moss (JHMoss@LAWYERNET.COM) said:
> The dissenting opinion looked at whether the Scout Oath and Law talked
> about sexuality. Interesting point that to state you do not agree with an
> idea, it must be prevalent in your creed?
> There were two dissenting opinions. The second, joined by three justices
> concentrated on the idea the BSA had not made sexual orientation a major
> theme in it's position and as such should be allowed to exclude.
> The point
> is that until you have said as a position of the organization,
> you cannot be
> "gay" you cannot oppose gay. They sort of want the definitions behind the
> Scout Oath and Law to include sexuality.
I don't agree with your analysis here. What the Supreme Court had to
leverage was whether the BSA's right to expressive association would be
significantly burdened by the New Jersey statute. (It has often been held
that anti-discrimination laws *did* apply to certain groups so long as doing
would not change/alter the group's fundamental purpose). In doing so, they
had to decide whether the exclusion of homosexuality was, itself, a major
principle of the Boy Scouts and would thus cause a fundamental change in the
way BSA conducts itself.
Regardless, 5 of the 9 Justices believed it would; hence the ruling.
Personally, I do not.
Yours in Scouting,