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: Suggested Citation