Making sense of Dale.

• Author: McGowan, David
• Position: Boy Scouts of America v. Dale

Things are often more complex than they seem, even when they seem complex. In Boy Scouts of America v. Dale, (1) the Supreme Court held that the Boy Scouts have a right under the speech clause to exclude an openly gay man from being a Scoutmaster. The man in question was also, in the Court's view, a gay rights activist. The Court held that this right trumped New Jersey's law against discrimination in employment and public accommodations. In greatly simplified terms, there are two ways of looking at this ruling.

Easy case; rightly decided.

Dale was an easy case. James Dale was openly gay. If he was a Scoutmaster, then people would think that the Scouts think that being gay is acceptable. The Scouts don't think that. In fact, the Scouts think just the opposite, though they would prefer to be polite about their opposition rather than making an explicit point of it. It makes no difference whether the Scouts actually teach boys that homosexuality is wrong. Dale would send a message just by being openly gay, and the Scouts have a constitutional right not to be forced to express any messages they do not want to express. There would be no point in analyzing the Scouts' message anyway, for the Court could not constitutionally pass judgment on that message in any respect. The Scouts therefore may exclude Dale regardless whether they teach anything about sex or homosexuality. Their statement in court that they do not wish to express the message Dale personifies is enough to defeat New Jersey's anti-discrimination law.

There is considerable power in this view. If it is correct, Dale is a significant departure from previous cases and sets a new direction in First Amendment law. One of the main questions about Dale is whether we should interpret the Court's opinion as adopting this view. The result in the case and some of the Court's language suggest that we should.

But the Court has never held that personal characteristics such as race, gender, or sexual orientation are inherently expressive within the meaning of the speech clause. (I will refer to such a theory as one of "expressive identity.") (2) The Court did not expressly adopt such a theory in Dale; it instead repeatedly referred to Dale as a gay rights activist. To say that personal characteristics are speech would require a second look at many anti-discrimination statutes. The expressive identity notion also calls into question precedents holding that women had to be admitted to the Rotary and the Jaycees, but the Court did not say it was overruling those cases.

Hard case; at least partly wrong.

Dale was a hard case. In the Scouts' favor, constitutionally protected expression is sometimes the product of the association of persons who wish to make a common point. An early statement of the modern expressive association right is found in NAACP v. Alabama, (3) an important case in the civil rights battles that produced so much of our modern constitutional law. The scope of a right cannot depend on one's view of the persons against whom it is used. The same right used by the NAACP to fight majority imposition of racial apartheid is fully available to the Scouts to right majority imposition of homosexual tolerance.

Moreover, some advocates of gay and lesbian rights argue that sexual identity, if openly proclaimed, is a form of expression that deserves constitutional protection. (4) In Dale, this argument favored the Scouts. If a declaration of sexual orientation gives one a free speech right not to be kicked out of the military, such a declaration also counts as expression for purposes of the Boy Scouts' right not to be forced to express messages with which they disagree. On the other hand, as just noted, the Court has not endorsed a theory of expressive identity and lower courts have not been notably receptive to the theory. (5) Because the Court did not hold that personal characteristics are free speech, one could argue, admitting Dale could not amount to compelled expression.

And the most analogous precedents favored Dale in important ways. If the Court had scrutinized the evidence of the Scouts' expressive activity as it did with the Jaycees and the Rotary, the record suggested that the Scouts (as a national organization apart from the local sponsors who actually instruct the boys), do not have common beliefs or teachings about homosexuality. Under previous interpretations of the right of expressive association, the lack of such common beliefs and the lack of any express teachings about homosexuality would undercut the Scouts' claim. On this view, the opinion reflects mostly the skillful manipulation and dodging of precedents to reach a desired result.

This essay examines these competing views and attempts to sort out what is right and wrong in each of them. My aim is to determine where the doctrine of expressive association stands after Dale. In particular, Dale poses the question of just what the expressive association doctrine protects. Is it the ability of groups to express their ideas, the ability of certain types of groups to manage their affairs without government interference, or a hybrid right the core of which is expression but which also protects from state interference some degree of managerial discretion necessary to make sure the group's message is expressed? (6) In my view the third of these options best captures the opinion, but the Court's opinion obscures this fact and leaves the doctrine in an uncertain state.

In the course of the essay I offer two conjectures about the facts of the case. The first is that the Scouts wish to exclude openly gay men to reassure parents that their boys will be safe from homosexual advances. The second is that the message the Scouts defended was a political compromise among sponsors of Boy Scout troops, who appear to disagree about homosexuality. I believe there is a reasonable basis for each conjecture, but I do not claim that either or both of them represent the "true" story of the case. Their role here is heuristic. My arguments, in brief, are these:

* The Court's analysis was cursory and conflicting. In a case where the Court said the facts and law were virtually inseparable, it resolved two of the three factual questions at issue by deferring to assertions in the Scouts' briefs. In a case where the Court began by demonstrating that the Scouts are a group with an expressive purpose, it then limited its inquiry to avoid asking whether the Scouts' expression had anything to do with homosexuality, while simultaneously saying that a group could not defeat an anti-discrimination law just by claiming that "mere acceptance" of a person protected by the law would impair the group's expression. (Parts II and V)

* The Court's stated deference was inconsistent with its analysis in prior cases, raised questions about the degree to which the speech clause protects expression rather than the managerial discretion of expressive groups, and left the doctrine in an unsettled state. (Parts II and V)

* The Scouts' decentralized organizational structure complicated the case significantly. The national Scouting body sets and interprets policy, but local troops actually express the Scouts' messages. Groups of sponsors filed briefs on both sides of the case suggesting that local troops deviate significantly from the message the Scouts defended in litigation, and which the Court accepted as a matter of deference. (Parts III and IV)

* Group expression is different from either individual expression or the free exercise of religious beliefs. A group's expression is the product of the common beliefs and interests around which its members form. Determining whether compelled association impairs a group's expression, or forces the group to express views it has a right not to express, requires analysis of the relationship between the group members' common beliefs and interests and the characteristics of the person the group wishes to exclude. (Part I)

* The Court was right to insist that it would not try to resolve differences of interpretation about a group's tenets. The only relevant question was whether the Scouts expressed a message sufficiently related to homosexuality that Dale's presence would alter it. That question cannot be answered solely by deference to litigation positions, however. In order to keep the right of expressive association tied to expression, a court must analyze the relationship between the group's common beliefs and interests and the person it wishes to exclude. (Part V)

* The Court has left us with a right that protects group expression and includes some protection for managerial decisions related to that expression. The Court's deference and its terse opinion leave us with little guidance on how far managerial discretion will be protected in order to protect a group's expression. The Court's reasoning would have been better had it focused more closely on the messages the Scouts actually expressed. The Court could have done this by acknowledging that the actual speech at issue occurred at the local level and holding that New Jersey's antidiscrimination law be applied on a troop-by-troop basis. (Part VI)

1. THE NATURE OF EXPRESSIVE ASSOCIATION

   Because one cannot assess claims of expressive association without some theory of how associations form and communicate messages, I begin with that subject.

   1. A BRIEF HISTORY OF THE EXPRESSIVE ASSOCIATION DOCTRINE

      Current expressive association doctrine can be traced to the Court's opinion in United States v. Cruikshank. (7) Cruikshank involved the Enforcement Act, (8) one of the Reconstruction statutes designed to guarantee blacks the enjoyment of their new civil rights, in particular the right to vote. (9) The statute made it a crime to "band or conspire together" to oppress any citizen or "hinder his free exercise ... of any right ... secured to him by the Constitution" or federal law. (10) The indictment alleged in part that the defendants had banded together...