The Return of Boy Scouts of America v. Dale

Abstract

In 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law” —and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bounded by the facts of the case. Freedom of association would not override equality under the law.The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social services providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to developments in the lower courts where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing.