From: Lawyernet (JHMoss@LAWYERNET.COM)
Date: Wed Jun 28 2000 - 13:14:42 CDT
The Supreme Court sided with the BSA today on the right to decide who can
become members of it's organization based on the 1st Amendment right of
Freedom of Association.
The decision was a 5-4 decision. A little close.
The CNN review of the decision is at:
http://www.cnn.com/2000/LAW/06/28/scotus.gay.boyscouts/index.html
The decision is posted at:
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&in
vol=99-699
Here are some quotes from the headnotes of the decision and my "analysis."
Held: Applying New Jersey's public accommodations law to require the Boy
Scouts to admit Dale violates the Boy Scouts' First Amendment right of
expressive association.
However, the freedom of expressive association is not absolute; it can be
overridden by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms.
First, contrary to the state court's view, an association need not associate
for the purpose of disseminating a certain message in order to be protected,
but must merely engage in expressive activity that could be impaired.
Second, even if the Boy Scouts discourages Scout leaders from disseminating
views on sexual issues, its method of expression is protected. Third, the
First Amendment does not require that every member of a group agree on every
issue in order for the group's policy to be "expressive association."
In so ruling, the Court is not guided by its view of whether the Boy Scouts'
teachings with respect to homosexual conduct are 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.
The Boy Scout Oath and Law were quoted in the decision. Pretty neat.
The dissenting opininon 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 orientaition 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.
Jim
Yours in Scouting
Jim Moss
Denver Area Council
12340 W. Alameda Pkwy., Lakewood, CO 80228-2841
303-980-5353 Fax 303-989-2316
JHMoss@Lawyernet.com JHMoss@Earthlink.net
