Freedom of Expressive Association vs. Equal Protection: Boy Scouts of America v. Dale 25 Years Later

Elizabeth Sepper has posted an interesting new look at Boy Scouts of America v. Dale, a nearly 25 year old case in which the Supreme Court upheld the Boy Scouts right to exclude a gay man from serving as a scout master under expressive associational freedom grounds.  The “Scouts” as they are known nowadays lifted the ban on gay leaders in 2015.  Here is the introduction:

Introduction

In 2000, the Supreme Court decided Boy Scouts of America v. Dale, a case that—like 2023’s 303 Creative v. Elenis—pitted First Amendment interests against equality under the law. The Boy Scouts had argued that the Constitution protected their right to discriminate in membership. Mandated inclusion of a gay man as a scoutmaster, they said, necessarily interfered with the group’s ability to express its own message (or stay silent) about homosexuality. The Supreme Court agreed. Its decision threatened to upend the law of freedom of association. First, the definition of an expressive association seemed to dramatically broaden. The Court instructed lower courts to defer to an organization’s claim to expressive identity, even if it had been generated in preparation for litigation.4 Second and similarly, the question of whether an antidiscrimination law significantly burdened expression seemed to be left up to the organization itself to decide. Finally, the Court muddied the level of scrutiny.

The opinion can be read to give expressive associations a presumptive out from antidiscrimination law, to require strict scrutiny of any such law, or to demand a balance between associational interests and governmental goals. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law”—and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond. But this dystopia did not materialize. Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bounded by the facts of the case. Freedom of association would not override equality under the law.

The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-commercial, non-profit groups. Expressive association is seeping into commercial and employment relations. Yet, with rare exception, scholars have overlooked this development. The essay offers some tentative explanations for why expressive association claims are succeeding now. It sketches a few areas of future development and predicts that the Supreme Court’s compelled speech opinion in 303 Creative v. Elenis will fuel the expansion of a right to discriminate in the name of expressive association. It concludes with a call that scholars pay attention to developments in the lower courts where doctrinal siloes no longer hold and where the antiregulatory agenda of the conservative legal movement is fast developing. 

darryll k. jones