In the 1980s, the U.S. Supreme Court took considerable steps toward decreasing the uncertainty surrounding an organization's associational freedoms by requiring an organization seeking to exclude individuals solely based on status to prove that its expressive purpose would be undermined if it included such members. However, these Supreme Court cases failed to establish any consistent approach to determining an organization's expressive purpose. Problems have arisen most acutely with the claims of gays seeking to be included in the Boy Scouts of America (BSA), an organization with a multifaceted and vague message. As the law now stands, courts have broad discretion to decide what facts are relevant in determining the BSA's expressive purpose. Unfortunately, this broad discretion has led to some courts' accepting the homophobic views of individual BSA members and leaders as the expressive purpose of the entire organization. This Comment proposes that the BSA's expressive purpose be determined only from objective evidence. If the BSA seeks constitutional protection to hate, its expressive purpose must be clearly defined in position statements, written in recruiting brochures, announced to sponsors, and referred to in either the original or amended bylaws.
Cara J. Frey,
Notes and Comments,
Hate Exposed to the Light of Day: Determining the Boy Scouts of America's Expressive Purpose Solely from Objective Evidence,
75 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol75/iss2/7