Legal Research

TITLE: A Right to Discriminate?

SUBTITLE: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association

AUTHOR: Andrew Koppelman with Tobias Barrington Wolff

PUBLICATION DATE: July 2009

PUBLISHER: Yale University Press

PAGE COUNT: 192 pp.

ISBN: 978-0-300-12127-8

PROBABLE PRICE: $38.00

Koppelman (law & poly sci/Northwestern) has teamed up with Wolff (law/U. Penn.) to analyze the effect of a seminal 2000 discrimination case on Constitutional law. Plaintiff Dale was expelled from the Boy Scouts of America due to sexual orientation. Suing under New Jersey's antidiscrimination law, the authors track the reasoned logic of the lower court: Dale's membership in the Boy Scouts did not violate the organization's freedom of expression because his objective was merely associative and did not infringe on the intentions of other members. The U. S. Supreme Court reversed with an opinion that Koppelmann and Wolff conclude would effectively overturn any antidiscrimination law. An overly-broad interpretation of the First Amendment, they argue, means that an association need only engage in expression in order to be protected. The Dale case is thus ripe for reversal by future justices who fear that its expansive scope might permit any expressive association to resist any form of regulation that it claims would interfere with its message. Recommended for academic, public, and law libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York