Without a corresponding freedom to associate, the First Amendment rights to freedom of speech, assembly, and to petition government would be trivial because political and social movements advocating changes to the status quo could be easily suppressed by laws dictating the rules under which activists could interact.1 For example, a pro-vegetarian social movement would not get very far if the government said, ‘‘Sure, you can sing the praises of greens and carrots all you like, but you’re going to have to let members of a veal-and-pâté-worshipping religion into your group.’’ This point was brought home more seriously and dramatically in the 1950s, when state governments in the South tried to defeat the civil rights movement by curtailing the associative rights of activists. The Supreme Court defeated this stratagem by recognizing the implicit constitutional right to associate for expressive purposes, now known as the right of ‘‘expressive association.’’2
In a series of decisions in the 1980s, however, the Supreme Court held that the expressive association right must yield to antidiscrimi-nation laws. Specifically, the Court reasoned that because the government has a compelling interest in eradicating discrimination, public accommodations laws that regulate the membership practices of private organizations trump the First Amendment rights of the organizations and their members. Fortunately, however, the Court seems to have recognized that its rulings created a grave danger to civil liberties and has recently backed away from these decisions.
The first case to reach the Supreme Court involving a clash between a public accommodations law and the First Amendment involved the United States Jaycees, an organization for young business leaders. The Jaycees originally accepted only men, but by the early 1970s it was admitting women as associate members. Associate members could participate in Jaycees activities, but they could not vote, run for office, or receive awards. Some chapters that wished to admit women to full membership, such as the Omaha Jaycees, formed two parallel, separate organizations under the same holding company. One of these organizations admitted women to full membership and conducted the day-to-day activities of the Jaycees. The other entity reserved full member status for men and served as the Jaycees’ official link to the national organization. Other Jaycees chapters were free to follow the Omaha model, but two Minnesota chapters instead chose to sue the national organization under Minnesota’s public accommodations law, which banned discrimination against women by membership organizations.
The litigation threatened to unalterably change the Jaycees’ message. The Jaycees’ charter established the organization’s central purpose as ‘‘promoting the interests of young men.’’ It hardly seems likely that young women admitted as members would use their membership primarily to contribute to this purpose. Moreover, the national, state, and local chapters of the Jaycees (including the Minnesota chapter) took positions on a wide range of political issues. Given the ‘‘gender gap’’ in political views—women on average are more liberal on economic and military issues than are men—forcing the Jaycees to admit women would inevitably affect the Jaycees’ political agenda.
For these reasons, a federal appeals court found that by forcing the Jaycees to admit women, Minnesota’s public accommodations law violated the Jaycees members’ First Amendment right of expressive association.3 Minnesota appealed to the Supreme Court, which ruled against the Jaycees in a 5–0 opinion written by Justice William Brennan, with Justices Sandra Day O’Connor and William Rehnquist concurring and two other justices recusing themselves.4
Justice Brennan acknowledged that the First Amendment protects the right to associate for expressive purposes, but he paid only lip service to that right. He found that the Jaycees had presented no valid evidence that the compelled acceptance of women as members would ‘‘change the content or impact of the organization’s speech.’’ According to Brennan, the claim that admitting women would inherently change the Jaycees’ message relied ‘‘solely on unsupported generalizations about the relative interests and perspectives of men and women’’ that ‘‘may or may not have a statistical basis.’’ Therefore, requiring the Jaycees to admit women did not violate anyone’s expressive association rights.
Had Justice Brennan’s opinion stopped there, it would not have been especially notable. Although critics have attacked Brennan’s tendentiousness in ignoring the very real and predictable ways that the Jaycees’ message would be changed by admitting women, if his opinion had confined itself to a fact-dependent analysis it would have had limited impact on the law. Instead, Brennan added that the Jaycees would have lost the case even if the Court had found that Minnesota’s public accommodations law had infringed on the Jaycees’ expressive association rights. He reasoned that because the law advanced the compelling interests of eliminating gender discrimination and ensuring ‘‘equal access to publicly available goods and services,’’ intrusion into First Amendment rights was permissible.
Reducing sex discrimination is an important goal, but merely stating that fact does not explain why the government’s interest in forcing the Jaycees to admit women was sufficiently ‘‘compelling’’ to trump the First Amendment’s protection of freedom of expression. Brennan did note that Minnesota claimed a longstanding interest in eradicating discrimination against women, but he failed to explain why a single state’s public policy goal creates a federal constitutional interest powerful enough to override the First Amendment. More fundamentally, Brennan did not address the government’s lack of a constitutionally legitimate —much less compelling —interest in eradicating discriminatory attitudes, beliefs, expressions, or associations. The very purpose of the free speech protections of the First Amendment is to prevent the government from squelching the expression or promotion of certain ideas, so it is difficult to see how the government’s claimed interest in doing so can trump the First Amendment.
Perhaps the nadir of the Supreme Court’s respect for expressive association rights was reached a few years after Jaycee s. The Court first extended the logic of Jaycees to hold that state governments could compel Rotary International to allow the admission of women as members. Then, adding insult to injury, the Court claimed that by approving government interference with RI’s membership policies, the Court was serving the Rotarians’ own best interests.5 The Court argued that its ruling would help RI achieve its stated objective of providing humanitarian service and encouraging high ethical standards. The addition of women, the Court added, would also likely promote RI’s stated goal of ensuring that Rotary clubs represented a cross-section of their communities. Because the Court believed that admitting women advanced RI’s stated goals, the Court reasoned that there was no violation of the right of expressive association. But, as in Jaycees , the Court volunteered that it would have ruled against RI even if RI’s expressive association rights had been infringed. Public accommodations laws, the Court reiterated, ‘‘plainly serv[e] compelling state interests of the highest order.’’
With the Supreme Court signaling open season on any organization deemed by state law to be a public accommodation, the Boy Scouts of America soon became a leading target of antidiscrimination lawsuits. Activists accused the Scouts of violating state and local public accommodations laws by excluding gays, atheists, and girls. Gays are excluded because the Scouts’ leadership believes that homosexual activity violates the Scout Oath, which requires scouts to be ‘‘morally straight,’’ a provision Scout leaders have construed to forbid nonmarital sex, including homosexual sex. Atheists and agnostics are excluded because the Scout Oath requires an acknowledgment of a scout’s duty to God. Girls are excluded because the Scouts believes that the moral education of boys is best undertaken in a single-sex atmosphere.
Those who objected to the Scouts’ policies were (and are) free to found the ‘‘Straight and Gay Scouts’’ or the ‘‘Godless Scouts’’ or the ‘‘Boy and Girl Scouts.’’ Dissident scouts also could join one of the many established youth organizations that do not discriminate on the basis of sex, religious belief, or sexual orientation. Some activists nonetheless sued the Scouts with the help of the American Civil Liberties Union, and eventually with help from local government antidiscrimination agencies. Several courts rejected these claims, but only because the Scouts was not a ‘‘public accommodation’’ subject to the relevant antidiscrimination law. Courts, meanwhile, consistently held that the Scouts had no constitutional expressive association right to discriminate to defend its creed.6 The Connecticut Supreme Court, for example, stated that the Scouts’ assertion of a constitutional right to exclude women from serving as scoutmasters had ‘‘little merit’’ in light of Jaycees and Rotary International .7
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A 1995 case, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston ,8 suggested that the Supreme Court’s deference to antidiscrimination laws at the expense of expressive association rights was waning. The Irish-American Gay, Lesbian & Bisexual Group (GLIB), a gay rights organization, claimed that Massachusetts’s public accommodations law obligated the organizers of Boston’s St. Patrick’s Day Parade to permit GLIB members to march under GLIB’s banner. The parade organizers responded that they had a First Amendment right to exclude any group that sought to convey a message (in this case, they claimed, a ‘‘sexual message’’) the organizers did not wish to convey.9 The trial court ruled in favor of GLIB,10 relying on Jaycees in holding that any ‘‘incidental’’ infringement on expressive association rights was justified by the government’s interest in eradicating discrimination against homosexuals. On appeal, the Massachusetts Supreme Court agreed that the organizers had no viable First Amendment defense.11 So far, it was business as usual, with public accommodations law running roughshod over freedom of association.
The tide turned when the U.S. Supreme Court reversed the GLIB decision in a unanimous opinion written by Justice David Souter. The Court explained that the parade organizers had not excluded gays from the parade. Rather, they had excluded a group that had been formed for the express purpose of marching under its own banner in the parade ‘‘in order to celebrate its members’ identity as openly gay, lesbian, and bisexual descendants of Irish immigrants.’’ The organizers had a First Amendment right not to promote this theme because ‘‘the fundamental rule of protection under the First Amendment, is that a speaker has the autonomy to choose the content of his own message.’’ Justice Souter distinguished Jaycees on the grounds that the Jaycees court found that enforcing Minnesota’s public accommodations law did not affect the Jaycees’ message, while enforcing the Massachusetts law would change the parade organizers’ message. Souter ignored the compelling interest test, even though it loomed large in Jaycees and despite the fact that the trial court and GLIB’s brief had relied on it.
Hurley’s broader significance became apparent in 2000, when the case of Boy Scouts of America v. Dale came before the Supreme Court. James Dale had become a Cub Scout at the age of 8 and had remained in scouting until he turned 18, ultimately achieving the rank of Eagle Scout in 1988.12 In 1989, Dale applied for adult membership in the Scouts and became an assistant scoutmaster. Meanwhile, Dale ‘‘came out’’ and became active in his university’s gay and lesbian advocacy organization. In 1990, a newspaper printed an interview with Dale about his advocacy on behalf of gay youth. Dale subsequently received a letter from the local scouting council revoking his adult membership, because the Scouts ‘‘specifically forbid[s] membership to homosexuals.’’
Dale sued the Scouts for violating New Jersey’s public accommodations statute. After protracted litigation, the New Jersey Supreme Court ruled in Dale’s favor. The court found that the Scouts’ ability to disseminate its message of ‘‘moral straightness’’ was not significantly affected by forced employment of Dale. Moreover, the court added a familiar refrain: even if Dale’s employment had infringed on the Scouts’ expressive association rights, this infringement would have been justified under Jaycees by the government’s ‘‘compelling interest in eliminating discrimination based on sexual orientation.’’
The U.S. Supreme Court overruled the New Jersey Supreme Court in a five-to-four opinion in favor of the Scouts, written by Chief Justice William Rehnquist. Rehnquist concluded that to force the Scouts to grant Dale a leadership position would violate the organization’s right of expressive association because it ‘‘would significantly burden the Scouts’ right to oppose or disfavor homosexual conduct.’’ ‘‘Dale’s presence in the Boy Scouts,’’ Rehnquist wrote, ‘‘would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.’’ Just as the coerced presence of GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade organizers’ choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster ‘‘would surely interfere with the Boy Scouts’ choice not to propound a point of view contrary to its beliefs.’’
Rehnquist stressed that associations ‘‘do not have to associate for the ‘purpose’ of disseminating a certain message’’ to receive First Amendment protection. They merely have to ‘‘engage in expressive activity.’’ If the Scouts wants leaders to teach about sexual morality only by example, this subtle form of expression is protected by the First Amendment. Finally, Rehnquist also made clear that First Amendment protection is not limited to groups that take a strong stand against those they exclude. Rehnquist wrote that ‘‘[t]he fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.’’
Because Dale did not explicitly overrule Jaycees , one might have expected Rehnquist to meaningfully explore whether New Jersey had a compelling interest in eradicating discrimination against gays, but he did not. Rather, he simply wrote that given the severe intrusion into the Scouts’ right to expressive association, the state interests served by New Jersey’s public accommodations law were not sufficient to overcome the Scouts’ rights. Rehnquist implied that state interests in battling discrimination can overcome expressive association rights only when the infringement on such rights is minor, as the Court found was the case in Jaycees .
The four dissenters also did not focus on the compelling interest issue. Instead, they argued that the Scouts case was not sufficiently vociferous in its opposition to homosexual activity to have a First Amendment right to exclude gays. The Scouts’ lack of virulence is intentional—the organization seeks to encourage traditional moral values while creating as little offense among its members and supporters as possible. Had they succeeded in limiting expressive-association rights to organizations vociferous in their support of discrimination, the dissenters would have ensured that those rights are available mainly to marginal, extremist organizations. As Northwestern University Law School Professor John McGinnis observes, ‘‘the advantage of having a full range of civic associations lies in society’s enjoyment of a range and intensity of views on an issue pressed from the different perspectives provided by associations with different civic purposes.’’13 The constitutional world contemplated by the dissenters, by contrast, ‘‘is one in which shrill advocacy alone supplements the norms encouraged by the government.’’14
Another reason to protect freedom of expressive association from antidiscrimination laws is that government agencies charged with enforcing public accommodations laws tend to target groups with unpopular messages. For example, in 1994, the Nation of Islam, notorious for its racist, sexist, and anti-Semitic views (which are, of course, protected by the First Amendment), requested permission to rent the Cleveland convention center for a men-only meeting. The city of Cleveland sought a court ruling that the men’s event would violate Ohio’s public accommodations law by excluding women, and that denying the facility to the Nation would not violate the Nation’s constitutional rights. The Nation, in turn, asked for a judgment permitting it to restrict its event to men, in accordance with its religious practice.15
A federal district court ruled in favor of the Nation on expressive association grounds, a ruling that now seems correct under Dale16 but that was possible at the time only because the court ignored Jaycees . The court stated that ‘‘[i]f the City is allowed to make the public accommodation law requiring Minister Farrakhan to speak to a mixed audience, the content and character of the speech will necessarily be changed.’’ After the decision was announced, Nancy Lesic, spokesperson for Cleveland mayor Michael White, told reporters that ‘‘the city did not deny anyone’s rights in this case. It is an unlawful and discriminatory practice to deny a person access to a public facility on account of factors such as gender. In this case, women were being denied access to public accommodations.’’17 Yet it is difficult to imagine Cleveland similarly trying to force less controversial religious groups like Catholics, Orthodox Jews, or even Orthodox Muslims to hold coed meetings. Religious groups aside, it is also difficult to imagine Cleveland denying access to its convention center to the Junior League, the Girl Scouts, or other popular single-sex organizations.
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Dale leaves many questions unresolved. For example, can for-profit businesses ever claim the right to expressive association in defiance of antidiscrimination laws, or, as Justice O’Connor suggested in her concurrence in Jaycees , can the right only be asserted by ‘‘primarily expressive’’ associations? If the latter, how does one determine whether a nonprofit organization is ‘‘primarily commercial,’’ as O’Connor thought the Jaycees to be, or primarily expressive? Under what circumstances must courts apply Jaycees’ compelling interest test, and when, if ever, does the government have an interest sufficient to overcome the First Amendment’s protection of expressive association? Despite these loose ends, the Court’s decision in Dale is the greatest victory yet won by civil liberties partisans in the conflict between antidiscrimination laws and civil liberties.
The reaction to Dale , however, has largely divided along ideological lines. ‘‘Conservatives’’ generally support Dale , because in their eyes it prevents government from taking sides in the culture wars. ‘‘Progressives,’’ including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it seems to deal a blow to gay rights. Progressives also fear that organizations that wish to discriminate against other groups will rely on Dale for constitutional exemptions from antidiscrimination laws.
As a legal matter, however, Dale was not about the conflict between gay rights activists and their opponents, nor was it about a general right to discriminate. Rather, the underlying issue in Dale was whether a private, nonprofit expressive association has a First Amendment right to discriminate when needed to prevent dilution of its message. Although the right of expressive association can benefit people on either side of the political spectrum, for the past two decades the right has been primarily raised as a defense to antidiscrimination claims by African Americans, women, and especially homosexuals. As a result, left-leaning organizations have typically sought to limit the scope of the constitutional right, while conservatives have been more supportive of the autonomy of private associations. As discussed below, however, the left may soon find that the constitutional right to expressive association has its uses. It may save one of the left’s favorite causes—affirmative action preferences at private universities—from interference by the government.
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Dale ’s protection of the right of expressive association raises the issue of whether nonprofit expressive associations have a constitutional right to engage in race discrimination when needed to avoid dilution of their message. Even before Dale , one court recognized that the Ku Klux Klan had a right to discriminate. Thurmont, Maryland, had denied the KKK a parade permit because the Klan refused to allow African Americans to march in its parade. The Klan sued in federal court, and won.18 The court found that the Klan had a First Amendment right to exclude African Americans to prevent dilution of the Klan’s message of racism and white superiority.
In contrast, the New York City Commission on Human Rights ruled that a black separatist organization had no constitutional right to exclude whites from its otherwise public meetings.19 The Commission acknowledged that the United African Movement had proved ‘‘that there is a nexus between its racially discriminatory membership policies and the group’s message that Caucasians and people of African descent should not mix.’’ Therefore, forcing the Movement to admit whites to its meetings would dilute the group’s message and consequently infringe upon its right to expressive association.20
The Commission concluded, however, that New York had a compelling interest in eradicating discrimination on the basis of race, an interest that trumped the Movement’s First Amendment rights.21
Dale resolves the conflict between the Maryland and New York cases in favor of the expressive association rights of racist organizations. To force racist groups to integrate themselves, or even their audiences, would inhibit the ability of such organizations to preach racism at least as much as forcing the Boy Scouts to employ Dale would have interfered with the Scouts’ antihomosexual activity message.
Many people are shocked by the idea that any organization— even a pro-racism advocacy group—has a First Amendment right to indulge in race discrimination when necessary to further its message. Yet, as in many other contexts, protecting the First Amendment rights of unpopular, outrageous, and contemptible organizations will ultimately protect the rights of mainstream and forward-thinking organizations as well. Overtly racist organizations are far from the only expressive groups that have an ideology that leads them to discriminate on the basis of race. Private universities almost universally engage in racial preferences in admission. Although the motivation for these preferences is benign—speeding the social and economic integration of racial minority groups—the preferences nevertheless quite literally involve race discrimination. What critics must realize is that if Dale protects the right of the Klan to discriminate against African Americans, it also protects the right of private universities to discriminate in their favor.
Racial and ethnic preferences on behalf of African Americans and Latinos are rampant in American academia. According to a study conducted by a supporter of affirmative action, among the most selective and prestigious law schools, 17.5 times as many African American students were admitted in 1991 as academic qualifications alone would have predicted.22 At the same time, approximately half of all African American matriculants to law school would not have been admitted to any law school purely on the basis of their grade point average and Law School Admission Test scores.23 Although grades and test scores don’t tell the whole story about an applicant, these statistics show that racial preferences in law school admissions clearly go well beyond choosing the minority candidate when two candidates are equally qualified.
The legality of these preferences is dubious. In the famous Bakke case,24 four Supreme Court justices concluded that racial preferences always violate Title VI of the 1964 Civil Rights Act, which bans racial discrimination by schools that receive federal funds, a category that includes almost all American universities. A fifth justice, Lewis Powell, cast the deciding vote. Powell agreed that admissions quotas were illegal, but he concluded that racial preferences were permissible if they were used as a ‘‘plus’’ factor along the lines of other plus factors universities employ to diversify their student bodies.25
Some legal authorities, including one federal appellate court,26 assert that later Supreme Court decisions on racial preferences have overridden Bakke , and all racial preference programs by public or private universities now violate federal law. Others argue that Justice Powell’s opinion in Bakke , as the necessary fifth vote on an issue that has not been directly revisited by the Supreme Court, is a binding statement of law, so that using race as a plus factor is still permitted. As of this writing, two cases that will clarify the law are pending before the U.S. Supreme Court. What the Court will certainly not do is endorse the legality of quotas.
It seems clear that any limitation on affirmative action decreed by the Court will be met with tacit and perhaps explicit resistance from many universities. Despite Bakke ’s ban on quotas, for example, many universities continued to implicitly use them. Some universities discreetly violate the law but others do so overtly. For example, the administration of Rice University, a private school, believes that the law in its home state of Texas forbids it from considering the race or ethnicity of its applicants. Yet Rice’s director of admissions boasted to the New York Times that the school engages in various subterfuges to defy the law. For example, Rice will not officially give a preference to an African American student for being black, but it will give credit for the student’s involvement in a high school African American student club. As a result of such gambits, the percentages of African American and Latino students entering Rice barely changed after racial and ethnic preferences were banned.27 It would be logical to conclude that Rice not only continues to use race as a factor in admissions but also that it uses an implicit quota system.
Schools like Rice will eventually be targeted with reverse discrimination lawsuits. Private universities could respond to such lawsuits by claiming an expressive association exemption to antidiscrimination laws. The administrators of many universities sincerely believe that their schools should teach students the importance of assisting disadvantaged minorities and ensuring racial diversity in the upper echelons of American society. Not unreasonably, the administrators believe that if the law prohibits them from using racial preferences, they will see their schools’ classes become overwhelmingly white (and, increasingly, Asian American) and it will become far more difficult to promote their schools’ egalitarian ideals to their students. Just as employing Dale would have diluted the Boy Scouts of America’s anti–homosexual activity message, forcing private universities to adopt race-neutral admissions policies would dilute their pro-diversity messages.
Moreover, a university that has a racially homogenous class—or faculty—inherently sends a negative or, at best, indifferent message to its students and the public at large about the importance of racial diversity. Engaging in explicit racial preferences to ensure a diverse student population sends the opposite message. To preserve racial preferences, universities can rely on Dale ’s dictum that the Boy Scouts of America has a First Amendment right to teach ‘‘by example,’’ and argue that they too have a right to promote a moral vision unencumbered by government regulation.28 Conditioning federal funding of universities on the abolition of affirmative action preferences would place what constitutional scholars call an ‘‘unconstitutional condition’’ on that funding.
Some legal scholars argue that the 1976 Supreme Court case of Runyon v. McCrary29 suggests that, despite Dale, private universities cannot claim an expressive association right to discriminate on the basis of race. In Runyon , the Supreme Court rejected a freedom-of-association defense to a discrimination lawsuit against a whites-only private school. That opinion, and not Dale , is claimed by some to be the controlling precedent when expressive association rights conflict with laws banning race discrimination in education.
This understanding of Runyon is mistaken, because the Runyon defendants did not advance an expressive association argument. Instead, they made a very short, throwaway argument that compelled integration violated their general right to ‘‘freedom of association.’’ No such right appears in the Constitution, and the Supreme Court has never recognized a general right of association independent of any expressive goal. The Runyon defendants could have argued (but did not) that forced integration violated their First Amendment rights by impeding their ability to promote segregation to their students.30 Even that argument would have been problematic, however, because the schools involved in Runyon were organized on a commercial basis, and it is not clear whether commercial entities can claim expressive association rights.31 In short, the Runyon Court did not reach the issue of whether a noncommercial private school could successfully defend discriminatory policies as an exercise of expressive association rights.32 So, Runyon does not prevent universities from relying on Dale to protect their affirmative action programs from antidiscrimination suits.
If private universities acknowledged that they engage in racial preferences and successfully asserted an expressive association defense to any subsequent legal challenges, the current racial preferences in admissions would continue, but in a much more open and honest fashion. Because universities refuse to acknowledge that they engage in racial preferences, many otherwise well-informed people, including many of the beneficiaries of racial preferences, are unaware of their existence and scope.33
Some schools might not be able to successfully defend their racial preferences in the court of public opinion. On the other hand, if universities were more candid in their acknowledgment and defense of racial preferences in admissions, they might be able to develop a stronger constituency in favor of the preferences. Moreover, a frank acknowledgment by elite universities of the difficulty in finding African American (and to a lesser extent, Latino) applicants meeting the schools’ regular standards34 might lead to some useful national soul-searching regarding the inferior educational opportunities given minority students.
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One commentator, writing before the Court’s ruling in Dale , suggested that ‘‘under the First Amendment, discrimination of any kind in choosing one’s fellows in the conscience-forming enterprise must be viewed as protected expression.’’35 At least with regard to nonprofit, expressive associations, this is now the law of the land. Political progressives have expressed dismay at the ruling in Dale and the potential consequences of the decision. Not only did Dale deal a blow to the gay rights movement, they complain; now any nonprofit, primarily expressive group with an ideology that requires discrimination may also have a First Amendment right to discriminate regarding membership, employment, and audience to prevent dilution of its message. The left’s reaction is understandable. Many organizations with opprobrious ideas will evade antidiscrimination laws, using Dale as a defense.
On the other hand, protecting the liberty of those with deplorable views also protects one’s own liberty. Dale may allow the Boy Scouts of America to discriminate against gays, but it should also provide protection for private universities that discriminate in favor of Latino and African American applicants. In short, Dale ’s protection of the right of expressive association is about preserving pluralism by allowing organizations with diverse viewpoints to flourish. Given the vagaries of politics, where the majority can easily become a minority and vice versa, Dale ’s protection of ideological diversity should be supported by Americans from all points on the political spectrum.