Abstract
In James Dale v. Boy Scouts of America, the New Jersey Supreme Court decided that the Scouts could not exclude Mr. Dale from serving as an adult leader because he was gay. Then the U.S. Supreme Court in Boy Scouts of America v. Dale concluded in a 5–4 decision that the scout’s First Amendment grounded freedom of association allowed them to exclude Mr. Dale. We use the facts of the case and the decisions of both courts to examine the conflict between “Freedom of Association” and New Jersey’s contention that a compelling interest in weeding out discrimination gives it license to intrude into private conduct between individuals. We discuss the First Amendment questions of intimate association, expressive association, and freedom of speech. We question whether the perceived good or bad moral character of individuals should ever be a deciding factor in freedom of association cases. Could government, for example, compel one to associate with Mother Theresa just because she is a moral person? What if we prefer associating with friends who smoke cigarettes, eat fatty steaks, drink beer, gamble, and watch pornographic movies? As long as we do violence to no other person, what business is it of the government? We question whether the heavy hand of government should ever regulate freedom of association. We briefly allude to James Madison’s thoughts on compelling people to advocate ideas with which they disagree. We conclude with a discussion of the philosophical and economic effects of discrimination laws and with a radical proposal concerning the natural right of free association.
The authors would like to thank Sackitey Mate Kole for the calculations that undergird our statistical tables.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
530 U.S. 640 (2000).
- 2.
Id. at 644.
- 3.
Id.
- 4.
Id.
- 5.
Id.
- 6.
Id. at 645.
- 7.
Id.
- 8.
Id.
- 9.
Id.
- 10.
See N.J. Stat. Ann. section 10:-4 (West Supp. 2000), that provides, “l. A place of public accommodation shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment or transient guest or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, and food preparations or their derivatives, soda water or confections, or where any beverage of any kind for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations or terminals thereof; any bath house, boardwalk, or seashore accommodations, any auditorium, meeting place, or hall; any theater, motion picture house, music hall, roof garden, skating rink, swimming pool and amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, pool parlor, or other places of amusement; any comfort station; any dispensary, clinic, or hospital; any public library; any kindergarten, primary or secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education for the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, a place of accommodation, which is in its nature distinctive private; or shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco prentice to direct the education and up-bringing of a child under his control is hereby affirmed; nor shall anything herein contain or be constructed to bar any private, secondary or post-secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry, or affectional, or sexual orientation in the admission of students.”
- 11.
530 U.S. at 645.
- 12.
Id.
- 13.
Id. at 646.
- 14.
Id.
- 15.
See, James Dale v. Boy Scouts of America, 160 N.J. 562, 605, 734 A.2d 1196, 1219 (1999).
- 16.
160 N.J.608–609, 734 A.2d at 1221.
- 17.
160 N.J. at 613, 734 A.2d at 1223.
- 18.
Id., 734 A.2d at 1223–1224.
- 19.
Id. at 615, 734 A.2d at 1225.
- 20.
160 N.J. at 619–620, 734 A.2d at 1227–1228.
- 21.
515 U.S. 557 (1995). Here, as we will explore in greater detail later, the Supreme Court held that a gay group did not have a First Amendment right to march in a St. Patrick’s Day parade. The High Court decided that inclusion of the gay group would interfere with the parade organization’s First Amendment rights by giving the impression that they sponsored the views of the gay group. Id. 572–573. The Court said that the parade… “is an inherently expressive undertaking.” Id. at 568–570.
- 22.
160 N.J., at 634, 734 A.2d, at 1229.
- 23.
530 U.S. 640, 647 (2000).
- 24.
468 U.S. 609 (1984). Here, the Jaycees brought an action contending that the application of Minnesota’s public accommodations law requiring them to admit women violated the male members’ intimate association rights. The Supreme Court concluded that “Jaycees chapters lacked the distinctive characteristics that might afford constitutional protection to the decision to exclude women.” Id. at 621. The court emphasized that the local chapters are neither small nor selective, and that “much of the activity central to the formation and maintenance of the association involves participation by strangers to that relationship.” Id. at 621.
- 25.
Id. at 622.
- 26.
Id. at 648.
- 27.
Id. at 623.
- 28.
Id.
- 29.
Here citing New York State Club Assn., v. City of New York, 487 U.S. 1, 13 (1988).
- 30.
Citing Roberts, 486 U.S. at 623.
- 31.
Boy Scouts at 648.
- 32.
“It is the mission of the Boy Scouts of American to serve other by helping to install values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.
“The Scout Oath: “On my honor I will do my best to do my duty to God and my Country and to obey the Scout law; to help other people at all times; to keep my self physically strong; mentally awake, and morally strait.
“The Scout Law: “A Scout is trustworthy, obedient, loyal, cheerful, helpful, thrifty, friendly, brave, courteous, clean, kind and reverent.”
- 33.
Boy Scouts at 650, citing Roberts at 636 (O’Connor concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and desire for self-improvement”).
- 34.
Boy Scouts at 650.
- 35.
Id.
- 36.
Id.
- 37.
Id.
- 38.
160 N.J. at 618, 734 A.2d at 1226.
- 39.
Id.
- 40.
Id. at 651, citing Democratic Party of United States v. Wisconsin, 450 U.S. 107, 124 (1981) (“[A]s is true of all expressions of First Amendment freedoms, the Courts may not interfere on the grounds they view a particular expression as unwise or irrational”).
- 41.
Boy Scouts at 651.
- 42.
Id., citing Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 714 (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”).
- 43.
Boy Scouts at 651.
- 44.
Id.
- 45.
Id. at 651–652.
- 46.
Id. at 652 quoting the Scouts’ 1993 position statement, “The Boy Scouts of American has always reflected the expectations that scouting families have had for the organization. We do not believe that homosexuals provide role models consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the B.S.A.”
- 47.
See Curren v. Mount Diablo Council of Boy Scouts of American, 48 Cal. App. 4th 670, 952 P.2nd 218 (1998).
- 48.
Boy Scouts at 653.
- 49.
Id. citing La Follette, note 4041, Supra at 123–124 for the proposition that when considering burdens on associational rights, a court may not substitute its judgment for that of a political party.
- 50.
Id. at 653.
- 51.
Id.
- 52.
Id.
- 53.
Id.
- 54.
Hurley, 515 U.S., at 574–575.
- 55.
Boy Scouts at 654.
- 56.
160 N.J. at 612, 734 A.2d at 1223.
- 57.
Boy Scouts at 655.
- 58.
Id.
- 59.
Id.
- 60.
Id.
- 61.
Id.
- 62.
In the view of the Court, the record sheds some doubt on Dale’s claim. “For example, the National Director of the Boy Scouts certified that ‘any persons who advocate to Scouting youth that homosexual conduct is consistent’ with Scouting values will not be registered as adult leaders.” See Id. at 655 n.1.
- 63.
Id. at 656.
- 64.
Id.
- 65.
Id.
- 66.
See, Supra, note for the listing.
- 67.
Boy Scouts at 656.
- 68.
Id. at 657.
- 69.
Id.
- 70.
Board of Directors of Rotary International v. Rotary Club Duarte, 481 U.S. 537 (1987).
- 71.
Id. at 757.
- 72.
In Board of Directors of Rotary International v. Rotary Club Duarte, 481 U.S. 537 (1987), the high court considered a situation in which the charter of a local chapter of Rotary International was revoked by the national organization because it admitted female members. Here, the court concluded “the relationship among the members is not the kind of intimate or private relation that warrants constitutional protection.” Id. at 541. It emphasized the Rotary Club’s inclusive membership policy, pointing to its own declaration that “the purpose of Rotary is to produce an inclusive, not exclusive membership.” Id. at 546. Importantly, Rotary’s membership policy was designed to be inclusive in order to enable the club to be a true cross section of the business and professional life of the community.
- 73.
Boy Scouts at 658.
- 74.
Id. at 659.
- 75.
Id.
- 76.
See Id. at 699–700.
- 77.
Id. at 660, citing Texas v. Johnson, 491 U.S. 397 (1989) (holding that there is a right to burn one’s American flag), and Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that Ku Klux Klan leaders had a First Amendment right to advocate unlawfulness).
- 78.
Id. at 661.
- 79.
Id.
- 80.
Id. at 663 citing Justice Brandeis’ comment in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting), “To stay experimentation in things social and economic is a grave responsibility … It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The Chief Justice’s response to the Brandeis quote was that in New Ice Age he was speaking of experimentation in matters economic during the depression years. Id at 660. He wrote that Brandeis was a champion of free speech in matters of expression. He thought that the founders “believed that freedom to think as you will and to speak as you think are means indispensable to the spread and discovery of political truth,” citing Whitney v. California, 274 U.S. 357, 375 (1927) (concurring). Id. at 661.
- 81.
Id. at 664.
- 82.
Id. at 668.
- 83.
Id. at 668–669.
- 84.
Id. at 773.
- 85.
Id. “Rather, … the policy appears to be no more than a private statement of a few BSA executives….” Id.
- 86.
Id. at 776.
- 87.
At least that was the opinion of one writer. Writing of the New Jersey Supreme Court decision he said, “By the perverse logic of this decision, the Boy Scouts erred not in the direction of bigotry but rather in not being bigoted enough.” Terence Pell, “Not Bigoted Enough,” Washington Post, Aug. 23, 1999, at A17.
- 88.
Boy Scouts at 683, citing Jaycees, 468 U.S. at 626–627.
- 89.
Jaycees at 627.
- 90.
Boy Scouts at 682, 689.
- 91.
Id. at 688.
- 92.
Id. at 689. “BSA has not contended, nor does the record support, that Dale ever advocated a view on homosexuality to his troop before his membership was revoked.” Id.
- 93.
Id. at 696. He forcefully argued that the majority’s reliance simply on the fact that Dale was gay somehow sent a message endorsing homosexuality was wrong. Such a presumed message is the same as a “constitutionally prescribed symbol of inferiority.” Id.
- 94.
515 U.S. 557, 561 (1995).
- 95.
Id. at 573–574.
- 96.
Boy Scouts at 694.
- 97.
Id. at 695.
- 98.
Id.
- 99.
Id. at 696.
- 100.
Id. at 697.
- 101.
Id. at 699.
- 102.
Id.
- 103.
Id. at 699–700.
- 104.
See Id. at 660.
- 105.
As would Justice Brandeis, See note 8080, Supra, He thought the founders “believed that freedom to think as you will and speak as you think are means indispensable to the spread and discovery of political truth,” Whitney v. California, 274 U.S. 357, 375 (1927) (concurring).
- 106.
N.J-4. S.A. 10:5.
- 107.
Lew Rockwell, The Right To Exclude, Sep. 6, 1999; WorldNetDaily.Com.
- 108.
See on this Block, Walter, Whitehead, Roy and Hardin, Lu, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?,” The University of Toledo Law Review, Vol. 30, No. 2, Winter 1999, pp. 223–249; Whitehead, Roy, Walter E. Block and Patrick Tinsley. 2008. “Christian Landlords and the Free Exercise Clause: Sinners Need Not Apply,” Oklahoma City University Law Review; Vol. 33, No. 1, Spring, pp. 115–150.
- 109.
This will come as a surprise to the employer of Michael Jordan, or of marginal farmers during harvest when they are desperate for workers.
- 110.
Lew Rockwell, “The Right To Exclude,” Sep. 6, 1999; www.WorldNetDaily.Com. See also his “Exclusion,” Rothbard-Rockwell Report, Vol. 10, No. 10, p. 1, October 1999.
- 111.
It is surely a paradox that at a time when the U.S. armed forces are conducting an expedition ostensibly to promote the liberties of the Iraqis, liberties at home are in great danger.
- 112.
334 U.S. 1 (1948).
- 113.
These words appear in a 1964 amendment to the California constitution. See on this Cushman, Cases In Constitutional Law, p. 554, Prentice Hall (5th Ed. 1994).
- 114.
Lew Rockwell, The Right To Exclude, Sep. 6, 1999; WorldNetDaily.Com.
- 115.
For a philosophical view on the right to discriminate, see Narveson, Jan, “Have we a right to non-discrimination?,” Business Ethics in Canada, Deborah Poff and Wilfrid Waluchow, eds., Scarborough, ON: Prentice-Hall Canada, 1987, pp. 183–198; Block, Walter, “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, 1992, pp. 241–254; Block, Walter, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology, Vol. 57, No. 2, April, 1998, pp. 223–237.
- 116.
For the libertarian philosophy which underscores the underlying intellectual basis of this section, indeed of the entire paper, see Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973; Rothbard, Murray N., The Ethics of Liberty, Humanities Press, Atlantic Highlands, N.J., 1982; Hoppe, Hans-Hermann, A Theory of Socialism and Capitalism: Economics, Politics and Ethics, Boston: Kluwer, 1989; Hoppe, Hans-Hermann, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, Boston: Kluwer, 1993; Nozick, Robert, Anarchy, State and Utopia, New York: Basic Books, 1974; Block, Walter, Defending the Undefendable, New York: Fox and Wilkes, 1991; Block, Walter, “Libertarianism vs. Libertinism,” The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. 11, No. 1, 1994, pp. 117–128; Murray, Charles, What It Means to be a Libertarian, New York: Broadway Books, 1997; Narveson, Jan, The Libertarian Idea, Philadelphia: Temple University Press, 1988; De Jasay, Anthony, The State, Oxford: Basil Blackwell, 1985.
- 117.
There are three main sources of economic discrimination: on the part of employers, fellow employees, and customers. In keeping with popular sentiment on this matter, we shall confine our remarks to the former case, where discrimination, as we shall show, is powerless to harm the economically weak.
- 118.
On the economics of discrimination, see Becker, Gary, 1957, The Economics of Discrimination, Chicago: The University of Chicago Press; Block, Walter, 1982, “Economic Intervention, Discrimination, and Unforeseen Consequences,” Discrimination, Affirmative Action and Equal Opportunity, edited by Walter Block and Michael Walker. Vancouver: The Fraser Institute; Block, Walter and Walter Williams, 1981, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research, 2(2): 383–388; Block Walter and Michael Walker, 1985, On Employment Equity: A Critique of the Abella Royal Commission Report on Equality in Employment, Vancouver: The Fraser Institute; Demsetz, Harold, 1965, “Minorities in the Market Place,” North Carolina Law Review, 43(2): 271–297; Epstein, Richard, Forbidden Grounds, New York: Cambridge University Press, 1992; Hoffman, Carl and John Reed, 1982, “When is Imbalance not Discrimination?” Discrimination, Affirmative Action and Equal Opportunity, edited by Walter Block and Michael Walker. Vancouver: The Fraser Institute; Hutt, William H., 1964, The Economics of the Colour Bar, London: Andre Deutsch; Paul, Ellen Frankel, 1989, Equity and Gender: the Comparable Worth Debate, New Brunswick, N.J.: Transaction; Sowell, Thomas, 1981, Ethnic America, New York: Basic Books; Sowell, Thomas, 1982, “Weber and Bakke and the presuppositions of ‘Affirmative Action,’” Discrimination, Affirmative Action and Equal Opportunity, edited by Walter Block and Michael Walker. Vancouver: The Fraser Institute; Sowell, Thomas, 1983, The Economics and Politics of Race: An International Perspective, New York, Morrow; Sowell, Thomas, 1984, Civil Rights: Rhetoric or Reality, New York: William Morrow; Sowell, Thomas, 1975, Race and Economics, New York: Longman; Williams, Walter, E., 1982b, The State Against Blacks, New York, McGraw-Hill; Williams, Walter E., 1982a, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” Discrimination, Affirmative Action and Equal Opportunity, edited by Walter Block and Michael Walker. Vancouver: The Fraser Institute.
- 119.
These numbers are for illustrative purposes only.
- 120.
For a critique of feminism see: Levin, Michael, September 1984, “Comparable Worth: The Feminist Road to Socialism,” Commentary; Levin, Michael, 1987, Feminism and Freedom, New York: Transaction Books; Sommers, Christina Hoff, Who Stole Feminism?, New York, Simon and Schuster, 1994.
- 121.
Block, Walter, “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, 1992, pp. 241–254; Block, Walter, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology, Vol. 57, No. 2, April, 1998, pp. 223–237.
- 122.
Source for Table 1: U.S. Census Bureau, “Historical Income Tables – People,” table P-11, Marital Status – People 18 Years Old and Over by Median Income and Gender; http://www.census.gov/hhes/income/histinc/p11.html.
- 123.
Presumably this is due to sheer nastiness and perversity.
- 124.
The source for Table 2 is the U.S. Census Bureau, The Official Statistics, Statistical Abstract of the United States, 1998, p. 475, table No. 752, “Money Incomes of Persons – Selected Characteristics, by Income Level: 1995.
- 125.
Block, Walter, 1982, “Economic Intervention, Discrimination, and Unforeseen Consequences,” Discrimination, Affirmative Action and Equal Opportunity, edited by Walter Block and Michael Walker. Vancouver: The Fraser Institute, table 3, p. 112.
- 126.
Block Walter and Michael Walker, 1985, On Employment Equity: A Critique of the Abella Royal Commission Report on Equality in Employment, Vancouver: The Fraser Institute, tables V, VI and VII, pp. 48, 50 and 51.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2019 The Author(s)
About this chapter
Cite this chapter
Block, W.E., Whitehead, R. (2019). The Boy Scouts’ Right to Discriminate. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_4
Download citation
DOI: https://doi.org/10.1007/978-3-030-28360-5_4
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-28359-9
Online ISBN: 978-3-030-28360-5
eBook Packages: Economics and FinanceEconomics and Finance (R0)