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Justice Stevens Was Right (Again)

On Justice Stevens's birthday, I suppose it is appropriate that there is an article in the New York Times that, to my mind, highlights the wisdom of his 2000 dissenting opinion in Boy Scouts of America v. Dale. In that case, the Supreme Court held that the First Amendment prohibited the state of New Jersey from enforcing its antidiscrimination laws (which prohibit discrimination against gay people) against the Boy Scouts. The Court (in an opinion by Justice Rehnquist) reasoned that instilling a view that homosexual conduct is immoral was a part of the Boy Scout's purposes as an expressive association and that, as a consequence, enforcing the antidiscrimination laws against them was unconstitutional.In his dissenting opinion, Justice Stevens expressed doubt that condemnation of homosexual conduct was really part of the Boy Scout's self-understanding -- as opposed to a convenient stance adopted for the purposes of litigation:

The only policy written before the revocation of Dale's membership was an equivocal, undisclosed statement that evidences no connection between the group's discriminatory intentions and its expressive interests. The later policies demonstrate a brief -- though ultimately abandoned -- attempt to tie BSA's exclusion to its expression, but other than a single sentence, the BSA fails to show that it has ever taught Scouts that homosexuality is not 'morally straight' or 'clean,' or that such a view was part of the group's collective efforts to foster a belief.

Today, the New York Times reports about the Scouts' proposal to change its policies to allow gay members. The group's leadership has proposed to allow gay scouts, but not gay scout leaders. (This is interesting to me in part because I'm curious to see how church groups respond to it. Some have already begun to criticize it, though the key Mormon and Catholic constituencies do not appear to have commented. Will those interested in Catholic scout groups really insist that exclusion of young boys who identify as gay is required by Catholic teaching on homosexuality? I tend to doubt it, but we'll see.)But back to Justice Stevens. Towards the end of the story, we see that the text of the proposed resolution includes this telling littlepassage:

[S]couting is a youth program, and any sexual conduct, whether homosexual or heterosexual, by youth of scouting age is contrary to the virtues of scouting. . . . The Boy Scouts of America does not have an agenda on the matter of sexual orientation, and resolving this complex issue is not the role of the organization, nor may any member using scouting to promote or advance any social or political position or agenda.

Happy 93rd Birthday, Justice! You have always been at least 10 years ahead of your time.

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Chief Justice Rehnquist essentially ruled for the Court that it was for the Boy Scouts to say what the beliefs of the Boy Scouts were. Justice Stevens, on the other hand, basically said that the Boy Scouts had no such say, that they did not have a right to think for themselves, but that the courts should instead tell them what they believed.In recent days, the Boy Scouts decided for themselves what they wanted to believe. Rightly so. It is not for anyone to tell another what they believe and to then force them to associate with those who are opposed to those beliefs. Which is what the Court ruled.

Bender, if the Scouts were true to their core beliefs then, how can they be true to their core beliefs now? If they can decide for themselves, as you put it, on a new set of core beliefs every 10 or 15 years, how can they be said to have any core beliefs worth a constitutional defense?

I have a son in Cub Scouts; just started this year. When my wife hears about this, our son will have to leave scouting. Latinos (especially my wife) have clear opinons on this, especially in light of the Church's abuse scandal. She simply will not allow him to continue in a program that is moving in that direction. When she heard in January that the Scouts organization was considering this, she said to me; "If they want to see how that is going to work, why don't they just call their local Catholic bishop?"I do not see why gay folks and those on the left, always seems intent on wrecking things like this.It is not the end of the world to pull a kid from the Scouts I suppose, he can find something else to do, but it is a small, tedious hit/hurt, a cheap shot that did not need to be inflicted. After all the high minded talk is done, and the high and mighties return to their other court business (I doubt that when he was a boy, Justice Stevens was ever overseen by or needed to contend with a gay scoutmaster) I guess everyone gets back into their own routines.And so, will the Boy Scouts be improved by openly gay members, and eventually no doubt, openly gay scoutmasters?We'll see.

Ken,Scouting will be improved by not kicking out kids just because they happen to turn out gay and by not expelling troops that refuse to do this.

Ken --If your son is discovered to be gay when he's ten years old, what do you think the Scouts should do? Will it be respectful of his dignity to throw him out?

I have to agree with Bender. Let private associations decide for themselves what their membership requirements are. I also fully support the response of others to cease giving the Boy Scouts preferential treatment.Even if I disagree with Stevens on the principle, I do agree with his understanding of the nature of Scouting. Not being gay is not a core principle of the Boy Scouts, and the recent move by the Boy Scouts has proved this.My understanding that this is the result of the Latter Day Saints deciding to stop fighting against gays after the backlash following Proposition 8. They and the Catholic Church were the primary supporters of the proposition, and the Mormons took extra heat because they were raising so much money from outside the state.

Does anybody know WHY the Boy Scouts reject homosexuals as scouts and leaders? What does it hope to achieve by not allowing homosexuals?My kid attends a nationally known music camp every summer. The camp will kick kids and counselors out for displays of "romantic affection" of any sort because the intent of the camp is to immerse kids in music, not summer romances. (There are many other behavior regulations.)I'm astounded at how well they keep the kids so engaged, structured, and (by the end of the day) exhausted that they don't have time to think about making out.

"Latinos...have clear opinions on this..."So do a lot of African-Americans who, like Latinos, are pushing for equal rights.I find it of more than passing (sociological) curiosity that minority groups --- generally --- *seem* to oppose equal rights for the gay minority group."Let they who are without equal rights cast a stone..." (w/apologies to Jn 8:7)I find it hard to conclude that social exclusion is not a "cheap shot".

I've just been reading about Mary Douglas, the great anthropologist, who is famous for saying, "Dirt is matter out of place". According to her, cultures ostracize things which are anomalous, that is, they are a certain kind of thing but with a notable difference. The ostracized things are considered to be "dirty' or "impure", even dangerous She found this to be true in society after society. She applied the theory to, among other groups, the Jews in Leviticus who forbid pork (pigs, unlike other domestic animals, did not chew a cud, so they were seen to be anomalies). In a culture that values the marriage of male and female it should not be surprising that gay behavior is held to be "dirty" and even dangerous to the group. However, the automatic negative reaction to anomalies is not founded on fact. Its origin is an atavistic impulse found in human nature which might have been evolutionarily useful in the most primitive times, but isn't too useful now. (If you don't think the theory applies, consider this which Douglas observed: food on one's own plate is considered clean. But put your food on someone else's place and it automatically thought to be polluted. Not rational. I wonder if this theory also explain why we find the notion of drinking a glass of our own spit extremely yucky.)She was, by the way, a staunch Catholic her whole life.

If your son is discovered to be gay when hes ten years old, what do you think the Scouts should do?Ann,If this should happen, I suggest Ken should pull his son out of the scouts and say, "I don't want my son to belong to any club that would have him as a member."

Wasn't Justice Stevens' point, though, that the Boy Scouts had fought all the way to the Supreme Court to defend a principle they didn't have? And now they have shown they didn't have the principle, only different PR and legal advice.

Tom -- Exactly right. Justice Stevens's point was not that the Court (or New Jersey) was entitled to tell an expressive association what to believe. Instead, it was that an expressive group cannot exempt itself from antidiscrimination laws that apply to everyone else if discrimination is not truly part of an expressive agenda merely by baldly asserting that discrimination is part of its expressive mission when that is convenient. The right of groups to form their own expressive agenda is protected by the First Amendment, but they cannot just make it up as they go in order to get around antidiscrimination laws. The resolution's reasoning -- that sexuality is not appropriately part of scouting and that the organization has no view on the matter and does not try affirmatively to inculcate heterosexuality (or any other sexual norms apart from not being sexually active during one's scouting age or activities) -- cuts directly against the stance the organization adopted during the Dale litigation in the late 1990s. Indeed, the statement does not even purport to change Scout policy on that point. Instead, it seems to acknowledge the obvious -- or at least what was obvious to Justice Stevens in 2000.

Justice Stevens expressed doubt that condemnation of homosexual conduct was really part of the Boy Scouts self-understanding as opposed to a convenient stance adopted for the purposes of litigation:So Justice Stevens' point amount to tell the Boy Scouts: "You don't really want to condemn homosexual conduct (if you did, I'd let you have freedom of association). Instead, you're just faking your condemnation of homosexual conduct by fighting this all the way to the Supreme Court. Doing so is just a convenient stance adopted with the ulterior motive of being able to . . . well, I don't know exactly, but you're really just pretending to believe what you say you believe." A more incoherent and silly argument is hard to imagine. It would be coherent to say that anti-discrimination law trumps no matter how sincere the Boy Scouts are. It would also be coherent to say that the Boy Scouts can define their mission however they damn well please, and that can include condemning homosexual conduct even if they don't preach about it every week. But it isn't even logical to claim that the Boy Scouts were fighting all the way to the Supreme Court over a principle that they didn't actually care about protecting. Why do that? That doesn't even make any sense.

Um, that should be, 'So Justice Stevens point amounts to telling the Boy Scouts . . . '

No, Justice Stevens was wrong (again, as he generally was, especially in his religion jurisprudence). The Boy Scouts case involved a matter of a real right to privacy from a Constitutional perspective and a right to subsidiary from a Catholic social justice perspective. On the former: the Boy Scout case was a preview of the abortiofacient conscience fight in Obamacare--can anybody present on the public square, even a private actor, have the right to a public conscience different from Caesar's? The majority of the Court said--rightly--"yes." Stevens said "no." On the latter: to say Stevens was right is to collapse the distinction between government and people. People acting in public have a right to their own views; they are not clones of the government.

Wasting Time,I don't think that it's incoherent. Animus toward gays from a large part of the leadership and/or membership could motivate the Boy Scouts to pursue the case to the Supreme Court without being a core value.My impression of the Boy Scouts is that they are not focused a scout's sexuality (gay or straight). They seem focused on turning boys into good citizens rather than being specifically concerned about making them into good husbands in the way that a church youth group might be. Before this change, the Scouts were only concerned about who a boy scout took to prom if it was a guyEduardo Pealver is right that this change in policy vindicates Steven's understanding of the facts. Barring gay scouts wasn't based on a core principle but on animus, and once this animus has lessened, there was no reason to continue barring gay scouts.

Justice Stevens, with 34 years on the Supreme Court and time before that on a federal court of appeals, was a distinguished jurist, and for Prof. Penalver it must have been a distinct honor to clerk for Justice Stevens. It is understandable, therefore, that Prof. Penalver would wish Justice Stevens birthday greetings with the compliment that "[y]ou have always been at least 10 years ahead of your time." "Always" is a word that some, while respecting Justice Stevens for his judicial service, might question. I respectfully disagree that he was ahead of his time on the abortion issue, for example.In a 2010 law review article titled "Justice John Paul Stevens As Abortion-Rights Strategist," former NYT legal correspondent Linda Greenhouse traced the Justice's influence on the Supreme Court as he worked diligently behind the scenes to influence Justices O'Connor and Souter, for example, on the abortion issue. There's nothing inherently wrong with such practices, of course, but if Greenhouse is correct, Justice Stevens was a key player in the Court's abortion jurisprudence from the time he began on the Court. In fact, Greenhouse states that one of her prime reasons for writing the article was "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed he has served as an indispensable strategist in the preservation of that right at its moment of greatest need."Many will read Greenhouse's article (link below) and applaud Justice Stevens's efforts regarding abortion, concluding that he was at least 10 years ahead of his time, while others will conclude that he contributed to setting back recognition of the rights of the unborn for an even greater period of time. Greenhouse article: http://lawreview.law.ucdavis.edu/issues/43/3/liberty/43-3_Greenhouse.pdf

Cupcake -- your comment makes no sense whatsoever.Partly because it assumes that "animus" is the opposite of "core value" (it's obviously not).Partly because it assumes that something has to be a "core value" to receive constitutional protection (not true in the sense that you seem to mean, and you wouldn't want it to be true if you spent a few seconds thinking about how many other groups would be undermined or devastated in their missions if they had no constitutional protection for any characteristic except for whatever they preached about every single week).

Side note: again, if you think about it a bit, it's obvious that just about any group might have a hundred different characteristics that are, in fact, important to what makes the group distinctive and what makes it function, but that no one in the group thinks to mention (it's just assumed) until someone challenges it. In the context of a challenge, the group might then say, "Well, now that you bring it up, that characteristic is indeed important to us, and we don't want to be forced at gunpoint to include people whose lifestyle and activities are contrary to what our group exists to do." It is then hubris of the highest order for any outsider to say, "Oh, you didn't talk very much about this characteristic before, so it's not actually that important to you, and therefore I have the right to force you to change your group." Again, it would be a different thing if someone said, "I don't care how important this characteristic is to you, I think that no group should exist if it has that characteristic." Totalitarian that might be in instinct, but the position is at least rational. It is not rational at all to say what you and Justice Stevens seem to say: "The characteristic is actually not as important to you as you claim; if it were, you would have constitutional protection, but since I know your desires better than you, I can say that it's not." That's just dumb.

Dumb, except that now the group is admitting that (as Justice Stevens observed) taking a position on sexuality is just not part of its expressive purpose. The core/peripheral language is not in Justice Stevens's opinion, but I think Cupcake's comment nicely gets at the problem with your prior comment. Just because a group litigates an issue up to the Supreme Court does not mean that the issue is part of its expressive purpose. Distinguishing between the mere exercise of animus, on the one hand, and the legitimate pursuit of an organization's expressive purpose (however hateful), on the other, is hardly nonsensical. It is the best way to balance the enforcement of norms of nondiscrimination and freedom of expressive association. Do you think the former is entitled to any weight at all or must they give way to every claim (however novel, within the history of that group) that discrimination is part of a group's expressive purpose?

A very long time ago, with the help of a number of people, I obtained the rank of Eagle Scout and Order of the Arrow. Some of us were more masculine than others. In as much as a great deal of "being" a Scout involved physical activity we were taught the importance of looking out for those less able. It was not condescension it was part of the code. Sometime we did, other times we did not. We were kids. Perfection was not expected of us. God knows no one expected much less demanded we master an existential crisis. There was no badge for that. We are talking about kids, aren't we? If great minds and great souls are still evolving on the issues involved with being human, what in the world are we expecting of the kids? Anyone asking them?

Eduardo -What is an "expressive purpose"? Is that a legal term?

Being a little late to the party, let me highlight a nasty false equivalence that Ken is making between open gays (either as scouts or leaders) vs. the abuse scandals in both the scouts and the RC Church. The truth is, Ken, that your children are probably much safer in a situation involving parents and open gays, because open gays would be expecting and would be comfortable with scrutiny from parents about their conduct. Abusers, by definition, are trying to *hide* any suspect behavior and wouldn't want to draw scrutiny from parents.Most of the scouting abusers I have read about are married or single men who presented themselves as straight (and therefore would be hiding any same sex activity or impulses). Priests by definition must present themselves as celibate, so they too would be hiding any same sex activity or impulses.

Ann-- I'm not sure it qualifies as a "legal term," but it is a common rubric in speech cases. The First Amendment protects speech, not conduct per se. Obviously, some conduct has an expressive function or purpose. And the First Amendment cases offer some protection to this expressive conduct. See, e.g., United States v. OBrien (treating expressive intent as necessary, though not sufficient, for conduct to qualify as a kind of speech). The same act (burning a draft card) can have different significance for the First Amendment, depending on whether it serves a communicative or expressive purpose. I am using the "expressive purpose" language loosely, but I think subjective purpose in carrying out an act of exclusion performs a similar function in the expressive association cases as it does in the speech/conduct cases. Where membership decisions function to further an expressive association's purpose, those decisions are more likely candidates for First Amendment protection. Where they seem disconnected from the group's purpose, they do not themselves seem expressive and therefore would not seem to qualify. The question, I take it, is how strongly to defer to the group's identification of its expressive purposes. Wasted TIme seems to favor total deference and criticizes Justice Stevens's position as "arrogant" and (ironically) "dumb" because Justice Stevens would look to a group's past conduct or statements for evidence that an act of discrimination is actually serving some expressive function as opposed to merely reflecting animus by the group's leadership or membership, which (as a logical matter) may or may not be part of a group's expressive agenda.

Eduardo: now the group is admitting that (as Justice Stevens observed) taking a position on sexuality is just not part of its expressive purpose.You use the present tense "is" as if there is only one Platonic form called "Boy Scouts Expressive Purpose." It is what it is; if anyone "admits" that it does not include sexuality, then that is retroactive for all time; and outsiders can have access to this Platonic realm that might even be superior to the Boy Scouts themselves (who can be deluded as to what their own organization is about). This is just nonsense. The Boy Scouts, like probably a majority of the American public, may have changed their minds a bit in the past 15 years. That does not mean that their opinion 15 years ago is now retroactively changed so that it can be viewed as eternally constant. Total deference is the only position that makes any sense here. If a group says that it believes in something, who the heck is anyone else to question whether they do believe it or not? Insofar as they are claiming something about their own beliefs, you simply have to defer to that representation. That does NOT mean that you have to defer in the sense of letting them be exempt from any and all other obligations of law. It just means that if you want to override their beliefs, do it on the intellectually honest ground that you don't like their beliefs, rather than on the utterly disingenuous pretense that they don't really have those beliefs anyway.Finally, neither you nor anyone else has explained what the threshold is for "animus" (as you call it) to get constitutional protection. Presumably the "God Hates Fags" people are allowed, odious as they might be, to discriminate about who gets in their tiny group. But you think the Boy Scouts are not allowed to decide who gets in their group, because they haven't been quite as outspoken on it. So where do you draw the line? Moreover, why on earth should it be the worst discriminators who get the most constitutional protection? Are you and Justice Stevens trying to create an incentive for people to be meaner to each other, because if so good job.

balance the enforcement of norms of nondiscrimination and freedom of expressive association.Interesting that you put these two in balance . . . the second is in the Constitution as regarding private citizens, the first is not. Why isn't being in the Constitution a kind of trump card? I thought that's what judicial review was about.

Eduardo==Thanks a bunch. I'm still a bit confused. Do all "expressions" (whether words/gestures/actions/ whatever) signify either feelings or evaluations? Complexity, complexity.

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.