Although the First Amendment protects the right to peacefully assemble, the phrase "freedom of association" or "expressive association" does not appear in the Constitution. Nonetheless, the court has recognized two separate types of association that are constitutionally protected: (1) intimate association which is protected as an aspect of the right to privacy, and (2) expressive association protected as an aspect of the First Amendment's protection of free speech.
Why are some conservatives so happy with the outcome of The Boy Scouts of America v. Dale? Freedom of association cases are interesting in that they bring into conflict two competing views of the world: A rights-oriented view that holds a person's identity comes from individual choices and that government ought to create a framework of laws that remove barriers to choice, and a communitarianism viewpoint that holds that a person's identity comes from the communities of which an individual is a part, and that the communities are an important buffer between the government and individual.
The leading case on the "right of association" to establish and apply its own membership rules is the case of Roberts v. United States Jaycees 468 U.S. 609 (1984). In Roberts, the court recognized that the power to determine its own membership is central to the free speech rights of expressive organizations. If this were not the case, imagine how the speech of the Jewish Anti-Defamation League might be affected if it could be forced to admit as members anti-Semites. However, the court in Roberts upheld a Minnesota public accommodation law requiring the Jaycees to admit women as members in contravention of the Jaycee's membership rules.
Justice Brennan found that Minnesota had a compelling interest in providing the women of Minnesota, the economic benefits that came with membership in the Jaycees. In a concurring opinion, Justice O'Connor found that the Jaycees were a commercial organization and therefore subject to state regulation. On the other hand, O'Connor stated unequivocally that a predominately expressive association has an absolute right to determine its own membership.
In subsequent cases such as Rotary International v. Rotary Club of Duarte 481 U.S. 537, and N.Y. State Club Ass'n v. New York 487 U.S. 1, the court extended Roberts.
In Boy Scouts of America v. Dale (No. 9-699) the court was confronted with the issue if the New Jersey Supreme Court's decision which found that the Boy Scouts of America was subject to New Jersey's law against discrimination, and violated the law by expelling an assistant scoutmaster (James Dale) after he stated publicly he was gay, infringed on the Boy Scout's First Amendment right to freedom of association.
The United States Supreme Court held that applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violated the Boy Scout's First Amendment right of "expressive association." Citing Roberts, the court said that, "...government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire."
In making this ruling the court went on to say that, "...the court is not guided by its view of whether the Boy Scout's teachings with respect to homosexual conduct is right or wrong; public or judicial disapproval of an organization's expression does not justify the state's effort to compel the organization to accept members in derogation of the organization's expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem."
Here has been a continuing debate among my fellow conservatives as to how the U.S. Constitution should be interpreted. There seems to be wide acceptance by some conservatives that the only way to interpret the document is in a literal sense, in other words, if it's not specifically enumerated or mentioned in the Constitution, then it does not exist and the court should ignore the issue. No other method of analysis should even be considered. Had the court used this approach in this particular case, the Boy Scouts of America would be nothing more than a memory.
I ask again, why are some conservatives happy at the outcome of this case?
This decision was decided by the use of an "argument from precedent" analysis of the Constitution. By precedent, I mean a judicial decision. The court in this case based its arguments on the fact that an analogous case (Roberts) was decided in a particular way in the past, and it led them to the logical conclusion that the Boy Scouts case before them should be decided based on the rule contained in Roberts and other similar cases.
The outcome of this case was favorable despite the claim by some conservatives that the Constitution can only be interpreted by a literal method of analysis. Should the court overturn the decision because the case was not decided by the correct conservative method? You can't have it both ways!
KARL NEATHAMMER
Jacks Valley