One day, the Boy Scouts of America decided to rid itself of gays, starting with James Dale — Eagle Scout, assistant scoutmaster, and Hollywood-handsome New Jersy guy.
The Supreme Court of New Jersey said not so fast, BSA. Because you let any boy join, and because of your heavy reliance on public funding and public property, you are indeed a public accommodation. Mr. Dale's presence within the BSA does not affect your organization's ability to accomplish its purpose, and merely having one incidentally gay employee doesn't work as an institutional endorsement of homosexuality. New Jersey's public accommodation law reasonably prohibits discrimination, so you can't kick out Mr. Dale just because he's gay. Un-revoke his membership and give him back his job.
BSA appealed it to SCOTUS, and the ultraconservative Rehnquist Court unsurprisingly and unquestioningly accepted the BSA's revised argument that Scouting is not only a selective private religious membership club, but it is — more importantly — an expressly anti-gay organization. Ergo, the BSA cannot be compelled to include gays (for the same reason than the KKK can't be forced to include blacks.)
The BSA and the conservative justices believed that Mr. Dale's private romantic behavior could somehow be detected by every Scout in the United States, utterly undermining the BSA's own "values" instruction regarding young men's sexuality, which was...nothing. The BSA admitted that it assiduously directed Scoutmasters to avoid the topic of sexuality entirely. They simply insisted they had a double-secret "NO HOMO" policy down at the Texas headquarters, and that ought be good enough for the Court.
Rehnquist, O'Connor, Kennedy, Scalia and Thomas decided that New Jersey's laws intended to promote equal protection under the law (pursuant to the purposes of the Fifth and Fourteenth Amendments) were ultimately goals less worthy of Constitutional protection than the BSA's First Amendment right to express contempt for gay people generally, and the subsidiary right to hound one particular college kid out of his job (despite the fact that no allegation was made that Mr. Dale behaved in any sexually inappropriate way with any Scout, and without any evidence that Mr. Dale had, or ever intended to discuss his sexuality in his capacity as an assistant scoutmaster.)
Justice Stevens, in dissent, noted that neither the majority nor the BSA bothered to dispute the fact that their bigotry had caused serious harm to gay Americans. Stevens then concluded that the majority's decision had created a "constitutional shield" for antigay bigotry, and that they had fallen into the trap of converting their prejudice into legal principles.
His dissent was prescient.
On Wednesday, a federal jury unanimously decided that Philadelphia's anti-discrimination law barring organizations that discriminate from using publicly funded facilities also unconstitutionally failed to accommodate the BSA's First Amendment right — and avowed institutional purpose — of expressing its contempt for gays. (The BSA lost on two other Constitutional arguments).
"We can't be kicked out of the building or evicted and we don't have to pay any rent," cooed the BSA attorney, William McSwain, who essentially relied on the "constitutional shield" argument.
He's not entirely right. The lease apparently allows the city to evict the Scouts without providing a reason.
While that lease provision might ultimately provide a favorable outcome to the dispute, the perverse outcome of the Dale decision is that the government can put you out for no reason, but it can't evict you for being a hateful gaybashing bigot freeriding on amenities subsidized by the very people you willfully discriminate against.
Meanwhile, the Girl Scouts continue to accomplish their purpose without engaging in discrimination or bigotry,
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