BSA v Dale

[BuckeyeNut]

An old case now, but I'm curious what people think of it, having recently debated it.

What strikes me, immediately, is how funny it is that Kennedy went from the swing vote here to the swing vote Obergefell v. Hodges. As for the case itself, it pains me, but I think it was decided correctly. Homosexuality is as much an expression as heterosexuality is. Indeed, any scoutmaster who publically expressed a message of a sexual nature -- be it a call for the practice of family planning -- should be barred from the scouts. That would never happen, but Chief Justice Rehnquist points out it isn't a matter for the Court to mandate ideological consistency for an organization, citing Democratic Party of United States v. Wisconsin ex rel. La Follette.

A counterpoint someone made to me, and I one I found intriguing, is that the Scouts enjoy privileged access to public land and other government perks, as so they should not be considered a fully private organization. Hence, they cannot discriminate in determining their membership.

[MarkD]

I also have thought the Supreme Court came to a valid conclusion in BSA v. Dale. It's the four dissenters who worry me more. Hurley v. Irish-American Gay, Lesbian, & Bisexual Groups of Boston, Inc. was unanimous, so I can't help but wonder how the four dissenters in the Boy Scouts case can reconcile their votes in these two cases.

Justice Kennedy's willingness to be supportive of both the Boy Scout's First Amendment rights as well as being consistently "pro-gay" in four other major gay-rights cases -- Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, Obergefell v. Hodges -- does not particularly surprise me. Years before he was even appointed to the Supreme Court, when he was on the Ninth Circuit Court of Appeals, he wrote an opinion holding that it was constitutionally permissible for the federal government to ban gays from the military. Kennedy has been consistently trying to avoid making any comparison between race and sexual orientation, and I doubt he has even made up his mind about whether sexual orientation is an individual's choice.  He can and he does define liberty and equality whichever way he wants as he goes about "interpreting" the Due Process Clauses of the 5th and 14th Amendments, and the Equal Protection Clause of the 14th. His ideology is moderate, which places him at the apex of power within the Supreme Court. I loathe him.

[Kingpoleon]

Jurisprudential minds will always loathe swing justices because their general voting pattern is original and difficult to comprehend from a jurisprudential perspective.