By Andrew Koppelman

ISBN-10: 030012127X

ISBN-13: 9780300121278

Should still the Boy Scouts of the USA and different noncommercial institutions have a correct to discriminate whilst settling on their members?Does the country have a sound curiosity in regulating the club practices of non-public institutions? those questions-- raised through Boy Scouts of the USA v. Dale, within which the splendid court docket governed that the Scouts had a correct to expel homosexual members-- are on the center of this provocative ebook, an in-depth exploration of the stress among freedom of organization and antidiscrimination legislation.  The booklet demonstrates that the “right” to discriminate has an extended and ugly background. Andrew Koppelman and Tobias Wolff collect criminal background, constitutional conception, and political philosophy to research how the legislations should care for discriminatory deepest organisations.

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Additional resources for A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association

Example text

Why did the Court think that inclusion of Dale as a member of the BSA would amount to compelled speech? The answer cannot be deference to the views of the person objecting to the law. The forced association argument considered above has radical implications, but they are confined to antidiscrimination law. If, on the other hand, one is excused from obeying any law if obedience would send a message, and the objector gets to decide whether obedience sends a message, then all laws are invalid in all their applications because this defense will be available in a prosecution for any violation of the law, from double parking to homicide.

As part of their concerted resistance to desegregation and the enfranchisement of black voters, Alabama and other states invoked state corporation laws in an e√ort to compel the National Association for the Advancement of Colored People and its local a≈liates to disclose the names of their members. In the atmosphere of intimidation and violence that prevailed in many quarters at the time, the organization asserted that compelled disclosure of its membership lists would e√ectively destroy the organization’s ability to function by deterring members from contributing their money or their e√orts to the organization’s advocacy.

Allwright (1944),∑Ω the Court confronted an internal Democratic Party rule restricting membership in the party to whites. The party argued that it was a purely private association, ‘‘a voluntary association of persons of common political beliefs,’’∏≠ and so immune from regulation. The Texas attorney general agreed. ’’∏∞ The Court was unimpressed. It did not deign to respond to the First Amendment claim. ’’∏≤ The most di≈cult of these cases, Terry v. ’’ The association held a vote before the Democratic primary, with only white voters permitted to participate.

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A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association by Andrew Koppelman


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