Brock,

Have to disagree. My thinking is more along the lines of Clint Bolick in describing private discrimination as expressive association. It may very well be bigotry, but it doesn’t mean that an injustice is being perpetrated, nor does the constitution protect against all forms of bigotry. The issue of the Boy Scouts comes to mind.

I oppose anti-sodomy laws for the same reason I agree that the Boy Scouts can discriminate among Scoutmasters: expressive association.

Robert,

I agree that the U.S. Constitution does not protect against all forms of bigotry, nor should it. Nor should statutory law. But I think that our current system of forbidding racial discrimination by employers, businesses, and landlords is the right one, given the nasty cultural cancer that racism is.

I don’t know how old you are, or where you grew up, but I’m old enough to remember when there were separate waiting rooms for blacks and whites at the Somerville, TN, health clinic. There were no signs posted, but everyone knew where they were supposed to sit. Without strong anti-discrimination laws, we’d still be seeing this all over the South. And it certainly was an injustice.

And just as a minor nitpick, the matter of the Boy Scouts was based on interpretation of the New Jersey Constitution, not the U.S. Constitution.

Brock,

I’m 35 and grew up in Pascagoula, MS. I didn’t see overt discrimination growing up but the covert discrimination was everywhere.

Given that most health clinics—if I’m interpreting that correctly—are generally state-run, anti-discrimination laws should be a slam dunk. And yes, that sort of institutionalized discrimination would be an injustice. I’ve even grown accustomed to seeing the commerce clause stretched to allow Congress to outlaw discrimination for commercial purposes.

However, when it is a matter of private, non-commercial groups—like the Boy Scouts—I draw the line. It is expressive association and should be protected in the same manner—and for the same reason—that flag burning is protected.

I’m too lazy to look it up—I have a workshop in the morning and the bed is calling me—but I believe it was a state law on public accomodations that was settled based on the U.S. Constitution. At least that’s the way the IJ amicus brief framed it. I can’t remember how SCOTUS came down. I thought they embraced the IJ amicus for the Scouts and ignored similar reasoning in striking down anti-sodomy laws, though the outcome was the same.

I actually think we’re not that far apart, though I’m more in line with the libertarians on this issue. Usually I line up with the statists; just ask Chris. :)

Robert, Brock: Here’s the case in question, Boy Scouts of America v. Dale. It hinged on the first amendment, not on any provision of the New Jersey constitution.

FWIW, the Boy Scouts were racially segregated prior to the civil rights era; I have no knowledge offhand of when this segregation policy was ended, however (Google gives a citation that claims the policy ended in the “1960s”, but I don’t know how to verify it off-hand). De facto segregation continues (particularly in the South) largely because most troops are church-affiliated and most churches are racially segregated.

In general, though, I think for freedom of association to mean anything, it must include the freedom not to associate (or, more properly, not to require that the group accept anyone who wants to associate with them), and I think a reasonably bright line can be drawn between commercial practice and private association—it’s the reason, for example, that ideas like the Taverns for Tots are bad, because they blur that line, and thus make it easier for government to infringe on free association.

None of that, however, means that any particular group is right (as opposed to entitled) to engage in discriminatory membership policies; most notably, I think the Boy Scout policy is misguided and mostly based on Clayton Crameresque bigotry rather than any clear conception of moral and ethical behavior, and (speaking as an Eagle Scout myself) it’s probably the main reason why I don’t continue to personally support Scouting. But, then again, for every person like me they’d gain they’d probably lose five if they changed their policy; if anything, I think it’d be better for the Scouts if the Supremes eventually overturned Dale, because I think the membership would accept it and move on, rather than going to other, more conservative organizations, which would be the likely effect of a BSA policy change.

You’re an Eagle Scout, too? I didn’t know that.

Perhaps the Boy Scouts would take their lumps, but churches would fight it tooth and nail.

Homosexuality is a matter of sexual morality for many of us. Having a practicing homosexual teach morals is quite abhorrent, and amounts to the loss of freedom of religion.

I generally do not oppose the liberalization of government policy regarding homosexuals, and am even tentatively not opposed to gay marriage (at least, not concerning the government benefits bestowed upon marriage). But my hesitance is rooted precisely in the feelings Volokh describes. Should the government get into the business of telling me what parts of God’s word they will let me uphold (as Canada has already started doing), I will proceed to tell the government to get stuffed.

And, as Volokh implies, if this concern could somehow be addressed, my own hesitance would be greatly diminished. I don’t really want to deprive gays of jobs, or force them out of my neighborhood, or otherwise make their lives miserable. But I want to continue to disapprove of their behavior, just as they (I’m sure) want to continue to disapprove of mine.

Thanks a lot, Robert, for mentioning that you grew up in Pascagoula. I’ve had the Ray Stevens song about the squirrel going through my head all day long.

I think it would have been best for the BSA if the national leadership had no policy on gays in Scouting. They should have left the matter up to local councils and troops. But they’ve commited themselves, and if they back off, they’ll be seen as “caving in to the homosexual agenda” by the Clayton Cramers of the world, who will pull their kids out. Which is unfortunate, because Scouting overall is a positive thing.

I myself would not be allowed by the national leadership to participate because of my non-religious status. Oh well.

Brock,

When I was in high school our band went to D.C. to play for Reagan’s 1984 inauguration, which was canceled due to weather, but everyone in that town kept asking us about that song. I haven’t listened to it since, but glad I could torment you a little bit. :)

Chris,

I agree on the right and wrong of the discrimination but the government should defer to their entitlement (or right) to set their own membership criteria. In short, we’re in agreement. Like-minded people are well within their rights to ostracize an organization for the policies it follows, just as the organization is free to ostracize (through it’s membership rules) those it disagrees with. Freedom of association, and all.

Your alteration of Volokh’s last paragraph is certainly interesting, and it’s not the first time that the gay-rights movement has been compared to the civil-rights movement. While, on the surface, this seems to be a legitimate parallel, it bothers me a bit, because race and sexual preference (sorry, I’m not too PC) are two completely different things: the former is strictly a set of inborn traits, whereas the latter is mostly a set of behaviors. In other words, somebody can’t “act black” (satirical TV shows notwithstanding). What bothers most people who are against gay rights is not the very existence of gay people, but rather that set of behaviors which many find aberrant. It’s apples and oranges, really. To me, comparing gay rights with civil rights is a slap in the face of legitimate minorities.

Hey, thanks for the link. And here is an email I sent to Volohk, to which he replied with a perfunctory—“thanks, interesting comment” (I don’t fault him for that; unlike other popular bloggers, he always at least gives some sort of reply).

This email is directed at comments like Kevin’s:

I don’t think that gay rights activists uniformly make the analogy to race discrimination, or if they do, then I think it’s a mistake to do so for a few reasons. What activists should do (what I do) is say that “sexual orientation” ought to be recognized as a “civil rights category.” That’s far different than arguing sexual orientation is a near perfect analogy to race. Why? Well just look what’s already recognized as civil rights categories at the federal level: Race, color, ethnicity, gender, religion, age, disability, pregnancy. (Am I missing any?) The relevant question becomes, given what’s on the list, and given that preexisting list is a fair one (it would be a far different story if the list included race and only race) is there any logical reason for keeping sexual orientation off of the list? I say no.

As far as analogies are concerned, I’d say gender and religion (I liked the one you blogged about with the Hindu example) are better ones than race. I realize that gender has more exceptions than race, i.e., “intermediate” as opposed to “strict” scrutiny and the BFOQ exception for disparate treatment cases, whereas race is never a BFOQ. Yet, if sexual orientation could get that (gender’s) level of protection, which is significant, but less than race’s, I’d say that would be a major victory for gay rights.

The next time you are in the store, guess the sexual orientation of the person you pass in the isle. You can’t do it because you don’t know if they are homo, hetero,swing both ways, or like farm animals

This is why it is disingenuous to compare civil rights to gay rights – you don’t know someone sexual proclinity until they tell you in some way.

There is also the potential for abuse. Fired from a job? Got gay protection? Say you’re gay, get a payout (being married doesn’t bar you from being gay – see former governor of NJ). In other words, proving that you’re gay is pretty hard, wouldn’t you say, and we would just have to go of the word of the person who is suing, setting up a whole area for abuse.

There is also the fact that the gay “community” has median income a good $10K above the national average. Hard to claim they are put upon if they are making more than anyone else.

I mean, what’s the problem we’re fixing with “gay rights”? Are there separate rooms anywhere from this country for gays like there were for blacks? Supporters claim there are gays everywhere, and if that’s so, why do they need protection?

“The next time you are in the store, guess the sexual orientation of the person you pass in the isle. You can’t do it because you don’t know if they are homo, hetero,swing both ways, or like farm animals.”

Sure I can. If Richard Simmons were to come strolling down the isle, I’d be able to tell without him explicitly coming out. Now, I don’t mean to perpetuate a stereotype; the governor of NJ—the gay PRESENT, not EX—really doesn’t fit the stereotype. And Rock Hudson was practically as masculine as John Wayne, but I’d say about 20% of gays have that “no closet can hold me” as their natural demeanor.

But in any event, it doesn’t matter, you can’t tell whether someone is Jewish, Mormon, left-handed, their astrological sign, whether they suffer from many of the disabilities covered by the ADA by simple appearance.

As for the rest, I deal with most of it in my blogpost.

I think the governor’s story is telling for this reason: It demonstrates the falsehood of the “you can’t tell whether someone is gay unless they tell you” meaningless, non-point. Ultimately, HIDING one’s sexual orientation—NOT being OUT—invariably leads to LIES.

One’s sexual orientation is about sharing your life with one’s life with one’s better half. Unless you NEVER get to know ANYONE at work, many people cannot AVOID talking about their sexual orientation without being duplicitous. Case in point, at one of the places I work, we hired someone, and they didn’t just come out right off the bat, but when discussing when would be an appropriate time to call his home regarding his work detail, he had to note when he and his partner are normally home and when they put the kids to bed.

If you are straight, and have a family, and work with other folks, do this little experiment: Try working there for years without ever mentioning your wife, your kids, or anything having to do with dating or romantic involvements. Make it seem as though no one could tell whether you are gay or straight. For the overwhelming majority of the working population, this simply can’t be done.