Today in 2000: SCOTUS finds a constitutional right to discriminate against homosexuals

June 28, 2013

Today in Legal HistoryThis week has been a big one at the Supreme Court.

This Wednesday marked the end of the 2012 October Term, with some of the most important rulings of the term announced in the past few days.

The most anticipated, of course, were the two dealing with same-sex marriage: U.S. v. Windsor and Hollingsworth v. Perry (we have more coverage of those rulings here and here).

Perry, the challenge to California’s Prop 8, was vacated and remanded because the Court found that the law’s defenders lacked standing to bring the appeal.

In Windsor, the challengers to Section 3 of the federal Defense of Marriage Act were successful: the Court struck down the provision.

Justice Kennedy’s majority found that Section 3, which restricted the federal definition of “marriage” to heterosexual couples, violated the Fifth Amendment’s Equal Protection and Due Process Clauses.

Also adding tinges of federalism into his rationale, Kennedy found that Congress overstepped its bounds in passing DOMA, which frustrates [the state]’s objective of eliminating inequality by writing inequality into the entire United States Code.”

Kennedy’s opinion also found unpersuasive Congress’ argument that its “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws” was enough to justify the restrictions placed on same-sex couples at the state level.

In short, the Supreme Court held in Windsor that the Constitution prohibited Congress from discriminating against same-sex couples by denying them the right to marriage given by their resident state.

Recognition of and respect for LGBT rights has grown in the populace in a relatively short period of time.

In fact, it was only 13 years ago today when the Supreme Court made a ruling seemingly the exact opposite of Windsor: finding a constitutional right protecting the discrimination against LGBT individuals.

That ruling was Boy Scouts of America v. Dale, decided on June 28, 2000.

As you could probably guess, the case involved the Boy Scouts of America (BSA).

The other party, James Dale, was member of the Boy Scouts since he was eight years old, and remained so until he turned 18, by which time, he had achieved the BSA’s highest rank of “Eagle Scout.”  According to the Court majority, “Dale was an exemplary Scout.”

Dale then applied for and was accepted to the position of assistant scoutmaster for a local troop.

Dale left for college at Rutgers University shortly thereafter, where he publicly came out as gay.  He later joined and eventually became copresident of the Rutgers University Lesbian/Gay Alliance.

When Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers, a newspaper covering the event interviewed him “about his advocacy of homosexual teenagers’ need for gay role models.”

After the publication of the article (which contained a photograph of Dale with a caption identifying him as the copresident of the Lesbian/Gay Alliance).

Shortly thereafter, Dale received a letter from the BSA revoking his membership.  When Dale inquired into the reason for the revocation, he was informed that the BSA “specifically forbid membership to homosexuals.”

Dale sued under New Jersey’s public accommodations statute, which prohibits, “among other things, discrimination on the basis of sexual orientation in places of public accommodation.”

The BSA claimed that it wasn’t a place of public accommodation, and, even if it were, the public accommodations law violated the BSA’s First Amendment “rights to enter into and maintain intimate or private relationships [and] to associate for the purpose of engaging in protected speech.”

After the lower courts rejected the BSA’s claims, the Supreme Court agreed to hear the case, solely on the issue of whether the law violated the First Amendment.

The five justice majority, written by Chief Justice Rehnquist and joined by O’Connor, Scalia, Kennedy, Thomas, found that the law to indeed be unconstitutional.

To support this ruling, the majority cited earlier precedent that held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”

The majority found that the BSA’s “expression” was teaching moral values to its members and publicly advocating for the same.

Since the BSA “sincerely” believed that homosexuality is immoral, the majority found that forcing the organization to accept homosexuals would severely limit its ability “to advocate its desired viewpoints…as effectively.”

Justice Stevens’ lengthy dissent, which was joined by Justices Souter, Ginsburg, and Breyer, disagreed, finding that none of the Boy Scout literature even discussed sexual matters aside from the fact that the Boy Scout Handbook “directed [Scouts] to receive their sex education at home or in school, but not from the organization.”

Justice Stevens further found an anti-federalist flavor in the majority opinion, finding that the ruling interferes with individual state “experiments” in taking action against discrimination and inequality.

That seems almost the polar opposite of the recent Windsor opinion, which found Justice Kennedy principally concerned with allowing the states to pursue their “objective[s] of eliminating inequality,” even at the expense of federal law.

It’s an interesting question to consider whether, if BSA v. Dale were decided today, if Justice Kennedy would have still joined the majority.

We may never know for sure, but Kennedy’s opinion in Windsor would seem to suggest that he would have instead joined Justice Stevens’ dissent, creating a new majority opinion with the opposite result.