Dissent
Okay, I lied. I'm posting and therefore not on hiatus. But the posting will be related to my studying for the bar, so hopefully I will not feel too anxious about the time I spend blogging (and therefore not studying).
I was just studying constitutional law. One of the fundamental rights afforded to Americans under the First Amendment is the freedom of association. One little tenet that I am currently trying to fit into my brain is: Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity (like the KKK - seems strange that discrimination can be considered an "expressive activity" but I will ignore this for now).
I am going to assume that the rationale for this "intimate association" exception to discrimination arises from the fundamental right to privacy. And I completely agree that if some little old white lady only wants to invite little old white people over her house for tea, she is perfectly within her rights to do that. She is operating within a wholly private and intimate context, and she may discriminate within that sphere. It's not the coolest thing to do, but that doesn't make it illegal. However, did you know that this "intimate association" exception to laws against discrimination also operates to make it unconstitutional to force the Boy Scouts to include gays? I find this completely and utterly ridiculous. The Boy Scouts is a national organization with five million Scout members. With those numbers, it's not a personal or private sphere. And anybody is supposed to be welcome. How is that an "intimate association"?
I know that under the current state of the law other rationales could have supported the argument that the Boy Scouts' discrimination against gays does not violate the Constitution or a gay person's fundamental rights (like, the Boy Scouts are a private organization and there is no state action involved so constitutional standards wouldn't apply to them, and anyway there is barely a constitutional standard regarding discrimination against sexual orientation anyway; sexual orientation is not even considered "suspect classification" and even a federal or state law that actually discriminated facially on the basis of sexual orientation (laws banning gay marriage, hello) would only give rise to really weak rational basis review). So there is no point in ranting about this one particular rationale. But it's just so stupid. It pisses me off.
Okay, back to the books.
I was just studying constitutional law. One of the fundamental rights afforded to Americans under the First Amendment is the freedom of association. One little tenet that I am currently trying to fit into my brain is: Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity (like the KKK - seems strange that discrimination can be considered an "expressive activity" but I will ignore this for now).
I am going to assume that the rationale for this "intimate association" exception to discrimination arises from the fundamental right to privacy. And I completely agree that if some little old white lady only wants to invite little old white people over her house for tea, she is perfectly within her rights to do that. She is operating within a wholly private and intimate context, and she may discriminate within that sphere. It's not the coolest thing to do, but that doesn't make it illegal. However, did you know that this "intimate association" exception to laws against discrimination also operates to make it unconstitutional to force the Boy Scouts to include gays? I find this completely and utterly ridiculous. The Boy Scouts is a national organization with five million Scout members. With those numbers, it's not a personal or private sphere. And anybody is supposed to be welcome. How is that an "intimate association"?
I know that under the current state of the law other rationales could have supported the argument that the Boy Scouts' discrimination against gays does not violate the Constitution or a gay person's fundamental rights (like, the Boy Scouts are a private organization and there is no state action involved so constitutional standards wouldn't apply to them, and anyway there is barely a constitutional standard regarding discrimination against sexual orientation anyway; sexual orientation is not even considered "suspect classification" and even a federal or state law that actually discriminated facially on the basis of sexual orientation (laws banning gay marriage, hello) would only give rise to really weak rational basis review). So there is no point in ranting about this one particular rationale. But it's just so stupid. It pisses me off.
Okay, back to the books.
posted by J. at 5:57 PM
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