“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

“If the BSA got away with this, what’s now to keep other organizations from developing such after-the-fact discriminatory “messages” that take some of their members by surprise? The Informed Association Statute proposal is one idea that might prevent this in the future.“

I really don’t know the answer. But I’m simply not convinced that legitimizing descrimination through something like the IAS is the best approach. I really need to investigate and reflect more. Thanks so much for your guest blog this week. I have learned a lot and will continue to piece together more as information comes my way.

OTOH, the “public accomodation” seems to me to be a rather convenient definition by way of which the state can (try to) regulate a purely private organization (while quieting complaints from those concerned about such regulation in general). One wonders whether a “public accomodation” is merely a private organization that has become sufficiently successful and popular?

Which brings me back to the example of a church. A pretty public thing for a private organization. A church has a big building, lots of members, posted and publicized times of events, open to everyone, nonmembers welcomed, no dues, and no one checking membership cards at the door. Many churches have public events (bazaars, etc.) to which the general public is invited, and many run schools that non-adherents to the faith may attend. No gender restriction. No age restriction.

While Boy Scout meetings are open to all that want to consider joining, one cannot continually visit without joining. And one cannot join and participate in the meetings, campouts, etc. without paying dues, taking and repeating the Oath (incl. the “God” and “morally straight” parts), buying and wearing a uniform, becoming a working member of a patrol or other small group and accepting responsibilities, etc. Not to mention the gender restriction on who can actually join as a Scout.

So the “public accomodation” again just seems to be a convenient construct to attack the “discrimination”. I don’t feel any better because of your explanation. Instead, it just seems like another opaque stealth tactic.

“Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation.”

But since discriminating on the basis of sexual orientation is not unconstitutional for private organizations, there is no legitimate source of power (i.e., rational-basis) upon which the NJ legislature could premise its legislation. Indeed, this seems like the legislature targeting anti-gay associations of people for what is effectively a fine (Aryes admits that this would impose a cost on anti-gay organizations: that’s the point). Since opposition to associating with gays could be premised on religious or political beliefs, this sounds like the legislature targeting an unregistered politcal party or an unregistered church for a fine or tax because the legislature doesn’t like it’s viewpoint. That is obviously unconstitutional. Under Romer v. Evans, it would be legislative animus, and it would fail rational-basis scrutiny. Animus (against anti-gay people) is not a rational-basis, and unfairly targeting people you hate or dislike with the police powers of the state is not a legitimate interest. Ayres’ argument is self-refuting.

What the government can do is to avoid funding discriminatory organizations. The university that I attended had that rule: discriminatory organizations (which included the typical college fraternity and sorority, among others) were those that were not open to any student who wanted to join. They were not funded by the student activity fee. Non-discriminatory organizations that were open to all students were funded. Funding included the right to use university property for organization activities as well. This seems like sufficient discouragement from discrimination to me, while still allowing freedom of association.

As much as I’m in favor of ending sexual-orientation discrimination, this sort of idea seems to be one that could be abused to penalize people who want to form organizations that take positions or actions that meet with official disapproval. For example, an Islamist organization might be required to have a disclosure form including the phrase “I, the undersigned, acknowledge that Al-Organizationa espouses the principle of jihad in cases of perceived oppression of Arabic people.” Someone buying books at a marxist bookstore might be required to sign a disclosure form saying “I, the undersigned, acknowledge that the Red Fist Bookstore retains the right to provide financial and other support to communist movements in central America.” etc. etc.

I think there’s a serious chill problem per NAACP v. Alabama. And I think that idea has to violate the First Amendment.

Honestly, I think the argument made in the alternet article is kind of disingenuous. You argue that this disclosure prevents “organizational fraud.” However, this implies that there’s actual deception going on. Who doesn’t know that the boy scouts discriminate on the basis of sexual orientation?

Anyone who joins an organization that discriminates who doesn’t know about it will soon learn about it if the organization actually engages in discrimination and the victim reveals it. Then the people who are offended can resign their membership.

This looks like an attempt to deter people from joining these organizations thinly-disguised as an “anti-fraud” measure.

I have yet to locate anywhere on the BSA site that the organization “opposes homosexual conduct”. And of course, even if it did, I am still perplexed as to why sexual identity has anything whatsoever to do with being able to teach children the skills the BSA offers through its program.

In February 2002 (note: 18 months after the Supreme Court’s decision in Dale) the BSA passed a resolution that included this provision:
“the national officers further agree that homosexual conduct is inconsistent with the traditional values espoused in the Scout Oath and Law and that an avowed homosexual cannot serve as a role model for the values of the Oath and Law…”
The resolution makes clear that local chapters will not be permitted to dissent from this position, as some have sought to do in the wake of Dale.
So now the policy is crystal clear, as Rodander points out:

And really, is there any lack of publicity about the Boy Scouts’ (or Catholic Church’s) position on this issue?

However, I disagree with Rodander’s next point, that in the future publicity about discriminatory policies will always be possible.

Yes, of course the BSA is quite clear about its anti-gay policy now, after litigating the issue all the way to the U.S. Supreme Court. But the policy was not at all clear earlier on, when thousands of families devoted time, talent and treasure to an organization they only later discovered to be anti-gay. But as Kenji Yoshino cogently argues, this lack of clarity did not stop the Supreme Court from permitted the BSA to establish the existence of its policy in a fairly tenuous way, by inferring an unstated rule against homosexual leaders from other stated values such as cleanliness or “morally straight” living. Had the organization articulated its policy earlier on, it would not only have lost members (as has happened in the wake of Dale), it would also have faced political consquences it was able to avoid earlier by keeping mum. If the BSA got away with this, what’s now to keep other organizations from developing such after-the-fact discriminatory “messages” that take some of their members by surprise? The Informed Association Statute proposal is one idea that might prevent this in the future.