Should Noncommercial Associations Have an Absolute Right to Discriminate

I INTRODUCTION In Boy Scouts of America v. Dale, (1) the Supreme Court held that the Boy Scouts of America had the right to discriminate against gay people. The Court's opinion is so muddled that it is hard to know who, other than the Scouts themselves, will benefit from it. A growing number of prominent scholars have suggested a clarification: that noncommercial private associations should be given an absolute right to discriminate. This clarification should be resisted. Before Dale, American constitutional law's treatment of freedom of association followed what Dale Carpenter calls a "message-based approach": (2) if an association is organized to express a viewpoint, then constitutional difficulties are raised by a statute that requires it to accept unwanted members if that requirement would impair its ability to convey its message. This rule has become unclear because Dale introduced two key ambiguities into the law. First, it seemed to hold that substantial interference would be found whenever an organization complained. Second, it seemed to hold that substantial burdens were per se unconstitutional, rather than merely subject to strict scrutiny. In effect, any plaintiff's claim was so powerful that all antidiscrimination laws were unconstitutional in all their applications. However, this rule is so patently silly that the lower federal courts have refused to believe it and have rejected Dale claims so consistently that they are on their way to confining Dale to its facts. The message-based approach lives. A notable group of commentators, whom I shall call the "neolibertarians," (3) have responded to Dale's ambiguity by advocating a sharper rule than any declared in the Dale opinion: an absolute right of noncommercial associations to exclude unwanted members. The group is a distinguished one, including Judge Michael McConnell and Professors David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, and Nancy Rosenblum. Their approach promises "to draw a line between [freedom of association and antidiscrimination law] that will preserve a large realm for group expression and organization while allowing the state to promote its equality objectives in the most compelling contexts." (4) A message-based approach, the neolibertarians argue, gives government the opportunity to scrutinize and reshape private speech, and thereby violates the central purposes of the First Amendment. One illustration of the pathology of a message-based approach, emphasized by several of these writers and by the Dale Court as well. is that it produces perverse results: a group that is stridently prejudiced will receive morn protection than one that is quieter about its views, and thus the rule creates an incentive to disseminate the very prejudices that antidiscrimination laws aim to temper. What the neolibertarians describe as perverse effects of a message-based approach are actually desirable ones. The pressure that a message-based approach brings to bear on discriminatory associations is exactly the kind of result that antidiscrimination law should strive to bring about, and it reaches it in a way that gives freedom of speech all the respect that it deserves. A message-based approach does put some pressure on discriminatory associations: discrimination is not so cheap as it was before, and a group will have to decide whether discrimination is worth the added cost. But this pressure serves state interests of the highest order and does not prevent groups with strongly held discriminatory ideas from uniting and disseminating them. The neolibertarian arguments are only slightly modified versions of old, discredited libertarian objections to the existence of any antidiscrimination law at all. The older, minimal-state libertarianism rests on three premises: (1) a morn-than-minimal state violates citizens' rights (the Rights premise), (2) government cannot be trusted to do more than prevent force and fraud (the Distrust premise), and (3) an unregulated private sector can be relied on to produce benign results (the Optimism premise). …