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At a time when Americans are grappling with the challenge of diversity, the U.S. Supreme Court has given us a lot to think about. In two fascinating decisions at the end of the last term, the justices confronted some questions that increasingly preoccupy us as individuals, as group members, and as democratic citizens: why and when is diversity among groups a good thing? When is the law justified in punishing deviant groups? Who should decide which groups are deviant, and on what basis? At first blush, the two decisions — California Democratic Party v. Jones and Boy Scouts of America v. Dale — seem to have little in common. Jones involved California’s blanket primary electoral system, while Dale involved the Boy Scouts’ exclusion of an avowed homosexual from a leadership position. Jones seems to be about party competition in the public sphere, Dale about a private group’s membership policies. What the cases share, however, is a struggle, waged under the banner of the First Amendment, over groups’ freedom to define themselves in a society strongly committed both to diversity and to equality. Jones and Dale are pointed reminders of the conflict between these values, sometimes forcing us to choose one over the other. In Jones, several political parties challenged a California statute, adopted by voters in a 1996 statewide referendum, that substituted a “blanket” primary for the traditional closed one for choosing party candidates for the general election. Whereas a voter used to receive a ballot limited to candidates of her own party, she now receives one listing every candidate regardless of party; voters may choose freely among them. The state defended the blanket primary, arguing that it traditionally regulated public elections and, following the referendum, had opted for a system that promised to increase turnout, produce more mainstream candidates, and give voters more meaningful choices in one-party districts where primaries are the crucial elections. The political parties contended that a blanket primary, by allowing nonmembers to help select their nominees, violated the parties’ First Amendment right to associate only with those who shared their views and interests, which implied a further right not to associate with those with different views and interests. Seven members of the Court, led by Justice Antonin Scalia, agreed with the parties, but first had to overcome practical and doctrinal difficulties. Earlier decisions had recognized that states may sometimes regulate primaries; indeed, the “white primary” cases held that parties must open their processes to blacks. California cited these cases to justify opening party primaries to nonmembers. The trial and appellate courts in Jones, moreover, had found that the California law protected valid state interests without significantly infringing on the parties’ associational rights. Another problem for Scalia was that a broad right not to associate might invalidate open primaries, adopted by more than half the states, that allow nonmembers to vote in a primary, as well as the common system allowing voters to register with a party on Election Day and vote in its primary. A Court ostentatiously committed to federalism and states’ rights would not want to invalidate diverse choices of different states concerning their governmental arrangements. Nevertheless, the Court ruled that the states’ interests must yield to a party’s right not to allow nonmembers to vote in its primary. At the same time, it reaffirmed its earlier decision in Tashjian v. Republican Party of Connecticut allowing a party to open its primary to nonmembers despite a state closed primary law. Jones, then, protects group autonomy and self-definition by affirming a right of organizational privacy. If a party, as a private group, wishes to reach out to nonmembers, the state cannot prevent it. If it prefers to limit its processes to members, the state may not interfere with that choice either. But is a party really a private group? All the justices assumed that it is, which is in tension with the fact that U.S. states regulate parties more than European states do, even though the latter subsidize their parties. In any event, the justices agreed that the primaries are clearly public proceedings and divided only over the issue of how much state intrusion on organizational privacy was permissible in such proceedings. Dale, the Boy Scouts case, raised a similar issue of organizational privacy but in an altogether different setting. James Dale, who was by all accounts a distinguished Boy Scout and admirable human being when he was appointed an assistant scoutmaster, was dismissed when the organization learned that he had publicly acknowledged his homosexuality and had become a gay rights activist. The Scouts stated that the organization barred homosexuals from membership, and Dale sued under a New Jersey law barring discrimination on the basis of sexual orientation in places of public accommodation. When the state supreme court construed the law to cover the Scouts and upheld Dale’s claim, the group appealed to the U.S. Supreme Court, claiming that the state violated its First Amendment right not to associate with homosexuals like Dale. The Court’s 5-to-4 decision in the Scouts’ favor is actually less interesting and important than the competing methodologies the justices offered for resolving such conflicts. All of them agreed that the First Amendment right of private groups not to associate with those whom they view as different also includes a right of “expressive association” allowing the group to avoid associating itself with messages that might lead outsiders to attribute to it values or characteristics that it opposes. The justices disagreed, however, over how this right to exclude unwanted messages applied to the Scouts’ exclusion of Dale. Specifically, they split over (1) how to interpret the group’s internal and public communications concerning homosexual membership, (2) what its “morally straight” and “clean” tenets meant as applied to homosexuality, and (3) whether those tenets would be applied only to Dale’s conduct (homosexual acts) or also to his condition or orientation (homosexuality); and, if only to conduct, whether only to conduct undertaken in his Scouts work. They also disagreed sharply over the question of proof. Chief Justice William Rehnquist, writing for a narrow majority, deferred almost completely to the Scouts’ self-depiction. It was enough that the group had expressed itself by taking an official and sincere position on homosexuality; the justices would not second-guess it by asking whether its position was a “purpose” of the group or whether the group had chosen an effective method of expressing itself. The group should enjoy complete control over how it defined and presented itself; an unwanted message that others might impute to the group could violate its right of expressive association even if its preferred message was controversial within the group, illogical, or even internally inconsistent. Only the group could say how salient its own message was and which other messages might so impair its own that the state’s interest in eliminating discrimination — which the majority acknowledged was compelling — should be overridden. The flip side of the Dale majority’s wholesale deference to the group was its refusal to give any credence to the state courts’ findings of fact on these questions, the same back-of-the-hand that the Jones majority gave to the lower federal courts in that case. The dissenters, per Justice John Paul Stevens, tested the Scouts’ claims quite differently. Relying on the Court’s earlier Jaycees and Rotary Club decisions, which rejected the groups’ exclusion of women because admitting them would not significantly burden the groups’ self-definitions, he also distinguished the Court’s more recent Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston decision upholding the right of a private St. Patrick’s Day parade organizing group to exclude a group wishing to march under a gay rights banner strongly opposed by the organizer group. Shifting the burden of justification, in effect, from the state to the Scouts and then raising the standard of proof, Stevens proceeded to parse the Scouts’ memorandums, and even its silence, with the kind of literal, logic-chopping precision more appropriate to the construction of bond indentures or tax codes than to discerning the fluid, often ineffable nature of group identity. To avert sham claims (a possibility unmentioned by Rehnquist), a group “must at least show it has adopted and advocated an unequivocal position inconsistent with a position advocated or epitomized by the person whom the organization seeks to exclude.” The Scouts, he concluded, did not come close to passing this test. However one interprets the facts about the salience and consistency of the Scouts’ position on homosexuality (I think reasonable people might differ), and however one feels about gay rights (I strongly favor them), Stevens’ approach to the conflict between diversity and equality is too intrusive. It ignores the fact that private groups, like the individuals who constitute them, need breathing room in order to survive and flourish. The meanings and satisfactions derived from many group memberships have everything to do with who and what the group excludes, and only the members can decide what those meanings and satisfactions are. Although most obviously true of religious groups and political parties, this is also true for most other social groups — from families to bridge clubs to labor unions to witches’ covens. If we want a civil society and polity in which private groups can sustain their meaning-giving value and function effectively, the state must keep its distance. (Ironically, the ability of a national polity to provide meaning and satisfaction to its members is very much under challenge — not by litigants but by porous borders, limits on its traditional sovereignty, globalism, and other factors. The state, as principal regulator of private groups, is finding it harder to maintain the loyalty, cohesiveness, and distinctive political identity of its own members, but this is a subject for another column.) It is not simply that those who exercise state power may use it cynically to serve their narrow or partisan ends — a serious risk of state laws regulating parties and primaries, though one not mentioned by the justices in Jones. It is also that even a benign regulatory state may stifle a group’s vitality, spontaneity, and authenticity. Stevens’ formalistic approach to discerning the Scouts’ organizational values ignores the possibility that the Scouts had never really had to focus on homosexuality until sued by Dale, which would not necessarily be inconsistent with authentic homophobic values. Were this approach to prevail, groups like the Scouts would be well advised to have lawyers scrutinize every communication that could possibly be used to challenge their value-defining choices. The fact that this legalization of private, not just public, life is already far advanced is no reason to extend its reach even further. Does rejecting Stevens’ approach nullify the viability of antidiscrimination protections? A full answer must be found in real-world consequences, as well as in legal rules. In practice, the Scouts and other such groups will and should pay a heavy price for their homophobia; many families will defect to scouting groups that welcome gays (others, unfortunately, may be more drawn to the Scouts because of its position), and public officials will withhold patronage and recognition, at least where they can legally. This is as it should be. A group’s principles are best tested when they bear a cost, and the cost of homophobia should be high indeed. In doctrinal terms, a group seeking exemption from generally applicable laws should have to show that its self-definition is not concocted for tactical purposes, but its standard of proof must be low if those laws are to protect the group’s autonomy — and the richness and diversity of a vibrant civil society. Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School and author most recently of “The Limits of Law” (Westview).

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