The Boy Scouts’ Right to Discriminate

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.