This Comment examines the United States Supreme Court decision in Boy Scouts of America v. Dale, which held that New Jersey's Law Against Discrimination violated the First Amendment by preventing the Boy Scouts from discriminating on the basis of sexual orientation in the selection of members and troop leaders. Zahner analyzes the Dale decision in light of prior freedom of expressive association case law, and reconciles inconsistencies by proposing a comprehensive framework for dealing with conflicts between antidiscrimination laws and freedom of expressive association. The proposed framework provides absolute protection for freedom of association for purely expressive groups, very limited protection for purely economic organizations, and varying degrees of protection for hybrid associations with independent expressive and economic agendas. This approach effectively meets recognized rationales for freedom of expression, and provides optimal results with respect to politicization of personal characteristics.
Adrianne K. Zahner,
A Comprehensive Approach to Conflicts between Antidiscrimination Laws and Freedom of Expressive Association after Boy Scouts of America v. Dale,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol77/iss1/15