A Right to Discriminate?

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How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association

Andrew Koppelman with Tobias Barrington Wolff

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Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members?

Does the state have a legitimate interest in regulating the membership practices of private associations? These questions-- raised by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Scouts had a right to expel gay members-- are at the core of this provocative book, an in-depth exploration of the tension between freedom of association and antidiscrimination law.

The book demonstrates that the “right” to discriminate has a long and unpleasant history. Andrew Koppelman and Tobias Wolff bring together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations.

Andrew Koppelman is John Paul Stevens Professor of Law and professor of political science at Northwestern University School of Law. He lives in Evanston, IL. Tobias Barrington Wolff is professor of law, University of Pennsylvania Law School. He lives in Philadelphia.

“In this important, sensible, and brilliantly argued book, Koppelman and Wolff cogently question, as incoherent law and bad policy, the view of our Supreme Court that a nonsectarian, noncommercial group, the Boy Scouts, have a constitutional right to discriminate, hobbling reasonable legislative efforts to protect vulnerable gay youth from the sometimes deadly ravages of homophobic prejudice.”—David A.J. Richards, Edwin D. Webb Professor of Law, New York University

"A short and sharp critique of broad constitutional protection for the association rights of non-profit organizations. The best extant defense of government intervention into the membership policies of organizations like the Boy Scouts of America."—David E Bernstein, Professor, George Mason University School of Law and author, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws

“Andrew Koppelman and Tobias Wolff demolish the reasoning behind the Supreme Court decision holding that the Boy Scouts have a constitutional right to discriminate against gays—and also give us an incisive, subtle analysis of freedom of association.”—David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, The University of Chicago Law School

“Boy Scouts pledge to 'be honest and open [and] respect and defend the rights of all people,' but in the Dale case, the BSA hierarchy and 5 Supreme Court justices failed that standard. With insight and clarity, Koppelman and Wolff help point the way to getting association rights and antidiscrimination law back in balance.”—Evan Wolfson, lead counsel for James Dale in Boy Scouts of America v. Dale, and author of Why Marriage Matters