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Frequently Asked Questions
Boys Scouts Discrimination Case
What does the term expressive association mean?
A group must engage in some form of expression, whether it is public or private. An association that seeks to represent a system of values engages in expressive activity. Therefore, expressive association is the right of a particular group to share a viewpoint that is central to its identity and exclude people who would interfere with their ability to express that viewpoint. The Supreme Court defined expressive association in Dale by saying that the Boy Scouts' right to express their views against homosexuality would be hampered if the organization was forced to admit openly gay people as leaders.
Why should the Broward School Board use public tax dollars to support an organization like the Boy Scouts if the Boy Scouts discriminate?
The U.S. Supreme Court in Boy Scouts of America v. Dale ruled that the Boy Scouts have a First Amendment right to defy anti-discrimination laws. Therefore, the issue becomes access to public facilities by private groups. One legal argument currently being used by attorneys for the Boy Scouts in Boy Scouts of America v. Till is that the school board is engaging in "viewpoint discrimination." The argument is that once a government entity has made public facilities available to private groups, thereby creating a limited public forum, it may not exclude speech protected by the First Amendment. For example, once a state allows some groups to give speeches on the steps of the state capitol, it cannot give permission to some and deny permission to others based on whether the state approves of what will be said. Therefore, once the School Board makes a decision to allow private groups to use school facilities, it cannot deny some groups permission to use them and grant permission to others based on how the School Board feels about the groups' purposes and views.
New Jersey passed a law that prohibited discrimination on the basis of sexual orientation in public places. Why did this law not stand in Boy Scouts of America v. Dale?
States may protect people from discrimination, but a state may not do so at the expense of another person's constitutional rights. For example, I have a constitutional right to my religious beliefs, but you have a constitutional right not to have soldiers quartered in your home. If my religion dictates that soldiers must be quartered in your home for me to reach salvation, and I file a lawsuit asking the courts to force the government to put some soldiers there, the Supreme Court will probably refuse to violate your constitutional rights in favor of mine. In the same way, Dale was asking the courts to violate the Boy Scouts' First Amendment rights by forcing them to reinstate him so he could exercise his civil rights, and the Supreme Court refused to grant his request.
