Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent

82 Pages Posted: 15 Jun 2017

Date Written: March 1, 2003

Abstract

In cases involving both the freedom of speech and the free exercise of religion, Justice Scalia has famously maintained that a neutral law of general applicability does not trigger any special First Amendment scrutiny merely because it happens to burden an individual's expressive activity or religious activity. When a bare majority of the Supreme Court invalidated New Jersey's application of its neutral and generally applicable antidiscrimination law to require the Boy Scouts of America to permit a gay man to serve as an assistant scout master, Scalia nevertheless joined the majority opinion even though the Court did not conclude that New Jersey had targeted the Boy Scouts because of the content of its expression or belief. A detailed analysis of Scalia's First Amendment jurisprudence shows that his vote to invalidate New Jersey's action because of its mere impact on the Boy Scouts was irreconcilable with his interpretation of the First Amendment in other cases.

Keywords: first amendment, boy scouts, discrimination, scalia, Barnes, Lukumi, speech, religion, association, compulsory association, neutral laws, general applicability

JEL Classification: K00, K1, K10, K19, K3, K30, K39, K42

Suggested Citation

Clark, J. Stephen, Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent (March 1, 2003). Southern California Law Review, Vol. 76, No. 3, 2003, Available at SSRN: https://ssrn.com/abstract=2985924

J. Stephen Clark (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

HOME PAGE: http://www.albanylaw.edu

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