Boys Scouts of America v. Dale

On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the 2000 case that allowed Boy Scouts to discriminate against gay scout leaders.

A podcast where we dissect and analyze the Supreme Court cases that have unraveled the fabric of American society, like a nail caught in a sweater

00:01 [Archival]: We'll hear argument now on number 99-699, Boy Scouts of America and Monmouth Council versus James Dale.

00:13 Leon: Hey, everyone, this is Leon Nayfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Boy Scouts of America v. Dale. This case from 2000 allowed the Boy Scouts organization to discriminate against gay scoutmasters, even though the relevant state law at the time prohibited it.

00:31 [Archival]: This case is about whether an organization which includes 50% of the boys in this country from age 7 to 11 has the constitutional right to ignore the civil rights laws of this country.

00:45 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

00:56 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have unraveled the fabric of American society, like a nail caught in a sweater. I am Peter, Twitter's The_Law_Boy. I am here with Michael.

01:12 Michael: Hey, everybody.

01:13 Peter: And Rhiannon.

01:14 Rhiannon: Hello, hi.

01:16 Peter: Michael, welcome back, by the way.

01:18 Rhiannon: Michael's here.

01:19 Michael: Thank you. It's good to be back.

01:19 Peter: Fresh off a break, mentally acute. Just sharp as hell.

01:24 Rhiannon: Ready to go.

01:25 Peter: I imagine.


01:26 Michael: Yeah, spent the time off honing my intellect.


01:31 Rhiannon: That's right.

01:31 Peter: Like a blade on a stone, right, just...


01:34 Michael: That's right. That's right.

01:37 Peter: Today's case is Boy Scouts v. Dale. As we all know, the Boy Scouts are a youth organization for boys that specializes in teaching wilderness and other practical skills. They're distinct from the Girl Scouts who, from what I can tell, are a front for some sort of money laundering operation.


01:58 Peter: It's like, "Timmy, you're gonna learn how to make a fire. Sally, you're gonna need to sell as many of these fucking cookies you can."


02:07 Rhiannon: Or you're out.

02:08 Peter: This is a case from the year 2000 about a Boy Scouts scoutmaster who was forced to sever his ties with the Scouts because he is openly gay. That scoutmaster sued under his state's discrimination laws, but the Supreme Court held in a 5-4 that the Boy Scouts had a constitutional right to sever their ties with gay members under the First Amendment's right to free association.

02:34 Rhiannon: Boo.

02:36 Peter: We've talked a bit on this podcast about how conservatives use the First Amendment to justify discrimination, and today we're gonna explore the contours of that. And what I really wanna get at is how, no matter how much fancy legal jargon the Court uses to dress it up, the question of whether or not discrimination against gay people or anyone else is protected somehow under the Constitution is entirely a matter of how acceptable the Justices on the Court think discrimination against gays or whoever else actually is.

03:05 Rhiannon: Yes.

03:06 Michael: Right.

03:07 Peter: This decision is written by then Chief Justice William Rehnquist, joined by the other four conservatives on the Court at the time, Sandra Day O'Connor, Scalia, Clarence Thomas and Anthony Kennedy. We've noted several times that Rehnquist was a segregationist early in his career, probably late in his career too, so it shouldn't come as a surprise that by the year 2000, he was maybe not the most open-minded towards gays. And to contextualize this culturally a little bit, it's the year 2000, it's a turning point, I think, in the culture war over gay rights.

03:42 Rhiannon: Yeah.

03:43 Peter: At this point, gay marriage is not widely considered to be on the table, so most of the gay rights culture war took place in back and forth letters to the editor about whether or not Will and Grace deserved a slot on prime-time television.


04:00 Peter: I don't know if you guys remember this era, but I do, and it was intolerable. In the courts, though, anti-gay groups were hoping to be found legally exempt from discrimination laws that protected gay people, a strategy that has in recent years actually found a bit of a foothold again.

04:16 Rhiannon: Yeah.

04:17 Peter: So Rhi, tell us about scoutmaster James Dale.

04:22 Rhiannon: Yeah, the story is about a guy named James Dale and honestly, like James, he sounds like a freaking square, you know.

04:30 Peter: That's weird, a lame scoutmaster?


04:34 Rhiannon: Yeah. I think the theme running through all this, it's like, this is a bunch of dorks in a dork organization, and they're being really dramatic. So Dale is involved in the Boy Scouts organization for most of his life. He enters scouting at the age of eight and officially becomes a boy scout a few years later in 1981. And in the majority opinion here, Dale is described as being an exceptional scout throughout his childhood and adolescence, and at the age of 18, he becomes an Eagle Scout, my understanding is that is meaningful to dorks in the...

05:07 Peter: That's the best one.

05:08 Rhiannon: Dorky organization. Yes, that's right. [laughter]

05:12 Michael: Top of the dork scale.

05:13 Rhiannon: Way to go, James.

05:15 Peter: The only thing better than being an Eagle Scout is having a friend.


05:21 Rhiannon: Well, you know, that's the point of this organization, right. It's for being a boy and wearing your cute uniform and hanging out with your cool boy friends.

05:31 Michael: Yeah, throwing on some culottes.


05:33 Rhiannon: Pulling up those socks.

05:35 Michael: High socks.

05:35 Rhiannon: That's right.

05:38 Michael: And having a good time.

05:39 Rhiannon: After he becomes an Eagle Scout, about a year later, he applies for adult membership to the Boy Scouts organization and is approved for the position of Assistant Scoutmaster of Troop 73. About the same time, Dale starts his freshman year at Rutgers University, and he becomes the co-president of the Lesbian Gay Alliance on campus, just an affinity group for students. And this would probably be totally cool and there would be no issues and no Supreme Court case, except for the snitch ass local media. In 1990, Dale attended a seminar about the mental health needs of gay and lesbian teenagers, and a local newspaper covering that event interviewed him.

06:22 Rhiannon: And he was just like discussing kids needing queer role models, etcetera. The paper ran that interview and included a photo of James Dale, and it identified him as a leader in the on-campus gay and lesbian alliance. So a month later, around late July 1990, Dale gets a letter from local Boy Scout officials informing him that he has been expelled from his position as assistant scoutmaster and they are revoking his membership to Boy Scouts of America. So Dale writes back to ask what reason there is for his expulsion from the organization, and they respond that Boy Scouts, "specifically forbid membership to homosexuals."

07:04 Rhiannon: So at the time, like Peter said, New Jersey, which is where this is taking place, New Jersey, had a state law that prohibited discrimination on the basis of sexual orientation in places of public accommodation. So James Dale filed a complaint under that state law saying he had been illegally expelled from public accommodation based on his sexual orientation, they explicitly said this in the letter, "This is a violation of New Jersey law." So James Dale's complaint goes up to the New Jersey Supreme Court, which agreed with him, they said that the Boy Scouts was an organization of public accommodation rather than just a private entity, and as such, they couldn't discriminate on the basis of sexual orientation. And in response to the argument that this violated the Boy Scouts' Freedom of Association, the New Jersey Supreme Court said that while the Boy Scouts do express beliefs and moral values as an organization, the Boy Scouts do not have a shared goal of association in order to promote the view that homosexuality is immoral.

08:09 Rhiannon: Just a little note here about the Boy Scouts as an organization and their history, they're not like an explicitly religious organization, religion isn't really in their mission statement. Back in 1910, when the Boy Scouts was founded, their mission statement was "To teach patriotism, courage, self-reliance and kindred values." That's it. Like I said, just dudes rock kind of organization.

08:37 Peter: Did Teddy Roosevelt have something to do with this, 'cause it feels very Teddy Roosevelt.

08:41 Rhiannon: He was really excited when the Boy Scouts Organization was founded, 'cause he's a dudes rock kind of guy, and so... Yeah, it's in that vein. Today, their mission statement is a little bit different. It is, "To prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout oath and law." They do sort of purport to have a general like what's called a duty to God principle and some sort of by-law that requires that members agree with a declaration of religious principle, but again, there's nothing explicitly as an organization that says like you gotta adhere to specifically like Christian values.

09:20 Michael: Right, right. And they were originally explicitly ecumenical?

09:25 Rhiannon: What the fuck does that mean, Michael?

09:28 Peter: Ecumenical?

09:29 Rhiannon: Sorry, I'm a dumb girl, Peter.

09:31 Peter: Cross-denominational.


09:33 Michael: Yeah, cross-denominational. They don't differentiate between religious faiths.

09:37 Rhiannon: Thank you, we can pick up on context clues, but sometimes a girl just wants to interrupt.

09:41 Michael: But so they got caught up in the religious right shit in the early '70s, seemingly in response to the birth of the gay rights movement, which started with the Stonewall riots in '69, and this was around the time they cancelled the availability of religious medals for Unitarian Universalists. So I think this story is really not that they're a religious organization and their religion was driving some anti-gay stance, so much as the opposite, their anti-gay attitude drove them into the hands of the religious right for a few decades and it's just sort of now fading.

10:16 Rhiannon: And they now allow girls to participate in the Scouts program, which officially is not the Boy Scouts anymore, it's just Scouts, they also allow trans scouts, but side note, they have a major sex abuse scandal, which Boy Scouts of America National has said has bankrupted their organization. So, so much for keeping the gays out, doesn't look like that did you much good on the moral high ground front.

10:43 Peter: I wanna flip the implication of the... So much for keeping the gays out, they're obviously wreaking havoc in place.

10:52 Rhiannon: No, no, no, that's not what I meant.


10:55 Peter: Look. If you can't run an organization where a single adult takes 25 children into the woods for a week at a time without pedophiles getting involved, then what can you do anymore? Look, I was looking into the Scouts a little bit as part of my research here, and if you don't mind, I'd like to take the next three to four hours to talk about merit badges. So I assume most people know that merit badges are awards that Boy Scouts get for completing certain tasks or areas of study. And I looked over all of the badges and I have to say it is completely bizarre. Some of them are for very basic stuff, like there's one for archery and one for fishing. Okay, sure. There's one for bugling, which we were discussing this earlier this week, it's like before trumpets had buttons, that's a bugle.

11:49 Rhiannon: Just a dumb horn.

11:52 Peter: Yeah, but then also there's one for nuclear science...


11:56 Peter: It's like a fucking PhD. What's going on here? And I was also very unsettled to see a crime prevention merit badge.

12:04 Rhiannon: Oh, God.

12:04 Peter: Yeah. A lot of red flags. Absolutely nothing good can come from teaching these little fucking dorks about crime prevention. This is the George Zimmerman merit badge.


12:16 Leon: Oh, no. That's bad.

12:20 Peter: And also, I was looking at what you need to do to get the badge. And one of the tasks is to identify the signs of child abuse, and I'm sort of wondering whether this is like the organization outsourcing their child abuse problems to the scouts themselves, they're like, "Okay, kids, let us know if you see any indications of sexual trauma." And the kids are like, "Why?" And they're like, "Oh, it's a merit badge."


12:44 Rhiannon: That's what all upstanding citizens do.

12:49 Peter: Yeah. Another disturbing one is that there's a merit badge called Indian Lore.

12:55 Rhiannon: Oh, God.

12:56 Peter: Maybe I'm off base, but it seems a bit odd to use the word "lore" to describe people that still live in this country as if they're mythological creations.

13:05 Rhiannon: Right, right, right. We don't need to switch up the genres, just history is fine.

13:09 Peter: Like the Indians and Dragons merit badge.


13:14 Peter: I will tell you one thing the Indian Lore merit badge doesn't require, and that's talking to a Native American.

13:23 Rhiannon: Do they have the requirements for each badge?

13:25 Peter: Yeah, you can look 'em all up. To be fair, one of 10 or so optional things you can do to get the badge is, "attend a contemporary American Indian gathering." But then it says, "discuss with your counselor what you learned and observed. Include in your discussion any singing, dancing, drumming, and the various men's and women's dance styles you saw."

13:47 Rhiannon: No, no, no, no.

13:50 Peter: Do they know that native Americans are regular people too? Instead of like, "Make a native American friend and ask them about their culture," they're like, "Attend a powwow."

14:02 Michael: Go to a sun dance.

14:04 Rhiannon: Exactly. Go around like the Jehovah's Witnesses, knock on a door, they're gonna be dancing inside, take some notes.

14:11 Peter: Smoke a peace pipe in a tipi.


14:14 Peter: This is the most offensive shit I've ever fucking seen, dude. How's that a merit badge? I will never let my kid go in the fucking Boy Scouts after going through these merit badges. I'm gonna teach my kid about nuclear science myself. Alright.

14:27 Rhiannon: Did you guys do Scouts when you were little?

14:29 Peter: No.

14:30 Michael: No.

14:31 Peter: This whole case is weird to me because I thought they were all gay.


14:38 Rhiannon: You do Boy Scouts when you're little, and then you join the gay and lesbian alliance when you go to college.

14:45 Michael: Your progression seems totally natural. Yeah.

14:47 Rhiannon: Right.


14:51 Peter: Alright, so our producer, Katya, is without this podcast, completely homeless. So in the spirit of supporting her, let's go to an ad.

14:58 Peter: Alright, let's talk about the law here. So Dale is simply claiming that he was discriminated against for being gay, which is a violation of New Jersey discrimination laws. The Boy Scouts are claiming that this violates their freedom of association. The First Amendment protects your freedom of speech. And the Court has held in the past that part of that is your freedom to associate with who you want, because some speech is only effective if it's done in conjunction with others. So the Scouts are saying, "Look, our decision not to associate with gays is an expression of our ideals, and that's protected by the First Amendment." And of course, we wouldn't be here if the Court did not side with the Scouts, stating that forcing them to associate with Dale would significantly impact their ability to advocate their viewpoints. So the first thing that jumps out to me about this is just how tenuous the connection between the right to association and any actual speech is.

16:00 Michael: Right.

16:00 Peter: Like I mentioned, there's no actual literal right to association in the First Amendment. Courts have just held that the right to associate must be protected in order to adequately protect speech. And when you're talking about protecting the rights of people who are organizing for a boycott or a protest, that makes sense, right?

16:17 Michael: Or a political party, right, like that's...

16:20 Peter: Right. But this is just an organization saying they don't like gays and don't wanna associate with them. That's not the same thing.

16:25 Michael: Right.

16:27 Rhiannon: Right, exactly. And to put the freedom of association into context, the Supreme Court first recognized the right to free association in 1958. The state of Alabama was trying to prevent the NAACP from doing business in the state and had subpoenaed the NAACP's membership list. And back then in that case, the Supreme Court said no, the NAACP members have the right to associate with one another and to do so privately. So the Court was stepping in and saying, look, Alabama is literally trying to shut the NAACP's viewpoint out of their state, that's a textbook violation of the First Amendment.

17:02 Peter: Right. And you can contrast that with this, where the Boy Scouts, as an organization, aren't being threatened at all, nor is their ability to speak either publicly or privately. This has no connection to speech or expression, it's just a pure manifestation of the Boy Scouts' desire to discriminate against gays.

17:18 Rhiannon: Exactly. Yeah.

17:19 Peter: And I think that brings us to the next point, which is that the Boy Scouts are claiming that their anti-gay stance is important to their message. The Boy Scouts isn't about gay stuff. Okay, this is about hyper masculinity, this is about heading into the woods with a dozen other dudes wearing matching uniforms with short shorts and little park ranger hats and perfectly tied neckerchiefs, and doing activities like basket weaving. And if you become good enough at an activity, you get a little award and you put it on your sash...

17:52 Rhiannon: That's right.

17:53 Peter: Okay.

17:53 Rhiannon: Yeah. No gay stuff just... This is about khakis.

17:55 Peter: Again, not gay stuff.

18:00 Michael: We don't want any sissies.


18:04 Peter: So the Boy Scouts are arguing that homosexuality goes against some of their core tenets. Specifically, they require scouts to be "morally straight" and "clean." Justice Stevens points out in his very competent dissent here, what the fuck does that have to do with anything? We know these little straight-laced freaks think that being gay is gross, but like, who cares? Who gives a shit? Why is the Court obligated to humor that at all?

18:32 Rhiannon: Exactly.

18:33 Peter: And that's sort of the fundamental rub here, like the Court is not actually obligated to place any weight at all on an organization's desire to discriminate against gays. Justice Blackmun in his excellent dissent in Bowers v. Hardwick in 1986, a case about the constitutionality of sodomy laws, wrote that, "The mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest." I think that puts it perfectly. If the Boy Scouts were saying they didn't want to associate with black people, the Court would have tossed their case out in a second. The reason they didn't here is that the conservatives are much, much more comfortable with anti-gay discrimination than they are with racial discrimination. And Rehnquist does this thing that conservatives always do in these cases. He's like, we're not ruling on whether or not homosexuality is wrong, but like, yes, you are. Yes, you are.

19:26 Rhiannon: Exactly. Right.

19:28 Peter: Because New Jersey passed a law saying you can't discriminate against gays. And the Court is basically saying, well, unless your organization thinks gays are really gross, then you can.

19:42 Rhiannon: And Stevens points out in the dissent that the Boy Scouts claim that this is a violation of their central tenets and that that doesn't really seem to make sense. The Scouts themselves instruct scoutmasters not to talk about sexual matters with scouts, sex stuff is not supposed to be part of this organization. So how can it be that their organizational position on certain sexual matters is so important to them that it's protected by the Constitution? The ACLU's brief in this case also points out that the Boy Scouts market themselves to all boys, but here they're clearly contradicting that position.

20:18 Peter: Right. And I think sort of like the real bottom line is that Scouts are such a generic organization that their mission can't be summed up as anything other than just a place for boys to learn some life skills, right, they go camping, learn some practical stuff, put that shit on your college resume, and that's that. The claim that somewhere in between canoeing and starting fires, you're supposed to infer that you can only fuck girls. I think that seems like a little tenuous...


20:46 Peter: Then again, they're not even a Christian organization, so they can't claim that this is about freedom of religion, which is why this is a big freedom of association, right?

20:53 Rhiannon: Yeah, yeah.

20:54 Peter: And also the Boy Scouts ended up officially letting gays in in 2012, so how central to their mission could it have really been if 12 years after this case, they changed their position entirely?

21:06 Rhiannon: Right, this is clearly just about bigots being bigoted, yeah.

21:10 Michael: Right. I do wanna dig a little deeper on this idea of their mission, because I think from a gender theory perspective, this all kind of makes sense.

21:17 Rhiannon: Come on, Michael, hit us with the gender theory, baby.

21:22 Michael: The Boy Scouts are not just about boys playing in the woods, right, it's about this construction of masculinity and about boys growing up to be like capital M, men. Getting all your merit badges and ascending in the ranks and maybe even becoming an Eagle Scout is a literal right of passage through adolescence into adulthood. And so all the things they do, all the things included in the merit badge catalog can be considered acceptable aspects of manhood, whereas things that are excluded could be considered more feminine. Masculinity is defined in opposition to no girls allowed, right, no women, definitely no gays, that sort of thing.

22:04 Michael: And Rhi mentioned they were founded in 1910, which was like the tail end of a period of big social upheaval after the Civil War and Southern reconstruction, size and structures of families was changing, there were no more slave servants. The country was urbanizing, men were spending more time at work outside the home, and their wives were taking on a larger role in raising and shaping their sons, and so the Boy Scouts are a social response to that, creating a space for boys to be boys and learn to be men.

22:37 Michael: And literally, one of their original documents, which I don't know in the 1910s, how you find workers, maybe you hand out pamphlets on the corner like looking for a job or whatever, but there is this document saying that in scoutmasters, they were looking for, all caps, real live men, red-blooded and right-hearted men, big men. And to be clear, it says, "No Miss Nancy need apply." So they had a very clear ethos.

23:07 Rhiannon: They had to say "No Miss Nancy," because big men is not gay at all.


23:14 Michael: Right, not clear enough.

23:14 Peter: Yeah, no pussies here, we need people who are gonna babysit these 12 children the entire weekend, alright, so you'd better be able to bench press three plates.

23:24 Rhiannon: Big juicy men.


23:30 Michael: So yeah, look, excluding gay men from the organization, it's like a classic heteronormative institutional approach, right. Essentializing gender, reinforcing gender hierarchies and as an ethos, this is like it isn't really far removed from conversion therapy, right. About molding people into their idea of men and so, yeah, maybe you could get a little sissy boy who's eight and you can turn him into a real man, but we don't need any of those as like scoutmasters. We don't need any of them teaching these kids. So yeah, that doesn't mean they should win, right?

24:03 Rhiannon: Right.

24:03 Michael: Their position is something like, "Boy Scouts, we make men and these fucking sissies aren't real men." The question of whether or not the First Amendment protects them and overrides New Jersey law protecting queer people, I think that's not a hard question, it has to be no, the first Amendment does not protect that.

24:22 Peter: I also wanna add, it was mentioned earlier that the Scouts now accept girls and they've become flexible on a bunch of these things, but it was great watching them scramble for a decade there when it was incredibly untenable, like when some girls like, "Why can't I go camping with you?" And they're like, "Ahh, because this is for boys." And that was the end of it.

24:44 Rhiannon: Right.


24:46 Peter: There was just like no actual reason for that sort of status quo in this day and age, and watching the discourse on it and watching conservatives get mad. If you ever just feel like getting a conservative angry, just bring up the fact that the Scouts now allow girls and just watch their heads just grow incredibly large until they explode like a tomato.


25:09 Peter: So it's important to note, circling back to the law here, that the reasoning used by the Court could essentially just exempt any organization from having to hire or otherwise work with gay people. If an organization that is not religious, has nothing in its mission statement about homosexuality and, in fact, instructs its workers not to talk about sexuality at all, can claim that they need to be exempt from anti-discrimination laws, then anyone can. This is 20 years ago, and it's been sort of a minor miracle that the reasoning employed by the Court here hasn't been used to forge massive loopholes in these laws. On the other hand, Anthony Kennedy, this case aside, was very sympathetic to gay rights and his replacement by Kavanaugh has left the door open for organizations interested in leveraging the First Amendment to facilitate their desire to discriminate against LGBT people moving forward.

26:04 Rhiannon: Yes.

26:06 Peter: This case is one of many where the analysis done by the Court is what's called a balancing test. The Court is just balancing the interests on both sides, they're weighing them. So they're saying, okay, the state of New Jersey has an interest in wanting to limit discrimination and the Boy Scouts have an interest in wanting to associate with whoever they like. And so which one's more important? Maybe the single central theme of our podcast is that interpretation of the law is generally driven by the preferences of judges rather than some sort of coherence or objective legal framework. That is especially true in these balancing test cases.

26:43 Peter: All the court is doing, no matter how much they dress it up, is saying, okay, which of these things is more important. It doesn't get more nakedly ideological than that. So you might be thinking, why can the Boy Scouts do this to gays, but not black people, for example? And yes, some law student might be raising his hand right now, technically they would be applying a different analytical framework if this was race discrimination, but the only reason they apply a different framework is because the Court treats race discrimination as if it's more serious, as if it's worse.

27:14 Rhiannon: Right.

27:14 Peter: It's pure policy preference.

27:17 Michael: Right, and I think the comparison to racial discrimination is important, and it's a good one. Preparing for this I was reading an article by a friend of the pod, Sam Bagenstos.

27:25 Rhiannon: Shout out.

27:26 Michael: From 2014, and he sort of situates this case in the long struggle since the Civil War over the breadth of the Civil Rights project, and the ability of the government to intrude on so-called private decisions with right-wing libertarians trying to carve out as big a space for private discrimination as they can. Back in the '50s, for example, someone who owned a diner would argue that it was his private decision about his own business in his own property whether to allow black people to eat there. And one of the big gains of the Civil Rights Movement was to say things like restaurants, clothing stores, railroads and airlines are actually public accommodations, and it doesn't matter if you're a private business owner, if your business is open to the public, then anti-discrimination laws can reach you. And so, like this article's worth reading in general, if you're into reading law review articles, which I imagine not a lot of you are, but...

28:20 Peter: I am also not... That's a Michael thing.

28:22 Rhiannon: Michael's the only one on the podcast.

28:23 Michael: Yeah, that's my role here. The article notes that literally freedom of association was a rallying cry for opponents of desegregation in schools and in public accommodations, and so there's this intellectual through line from Rehnquist himself in the Civil Rights era opposing desegregation to this opinion that he wrote, right, like in 1952, he infamously wrote a memo as a Supreme Court clerk in favor of segregation. I read it. It's shit, but he argues specifically that the Court is ill-suited to police the relationship between individuals and the state. So it's like a very expansive sphere of this private discrimination that the government cannot touch, in his mind. It's hard to read this case and not see that thinking embedded here.

29:13 Rhiannon: Yeah, absolutely.

29:14 Michael: And if all this sounds familiar, then it's because Peter, Rhiannon and Leon discussed this last week...

29:19 Rhiannon: Doesn't count, 'cause you weren't there.

29:20 Michael: Milliken v. Bradley. I wouldn't know, I don't listen to episodes that I'm not on, so, but they must have covered it, I imagine, so.

29:31 Rhiannon: Yeah, and to your point, Michael, like this is in a broader conservative trend around conceptions of rights and freedoms to be pulling back on these more expansive views or weaponizing an expansive framework, an expansive view against people, and you see it in more recent Supreme Court cases, like Hobby Lobby, corporations having beliefs that have to be protected, just this past term, the Our Lady of Guadalupe case, which said that anti-discrimination laws don't apply with hiring at religious schools, and in general, the trend in 14th Amendment equal protection jurisprudence. We talked last week already about how the Supreme Court just kind of put a stop on desegregation efforts, and we've talked before on the podcast about how affirmative action jurisprudence under the 14th Amendment is basically used now to protect white people.

30:19 Peter: Yeah.

30:20 Michael: Right.

30:21 Peter: And we've talked a lot about how through the '50s and '60s, the Court led by Chief Justice Earl Warren made major strides for racial and socioeconomic justice, and how the conservative courts that followed steadily rolled those gains back. This case is part of a separate related phenomenon, where not only do conservative courts roll those gains back, but they take the reasoning of those cases and turn them against marginalized groups. As we mentioned, the freedom of association relied on in this case originated in NAACP v. Alabama, where it was used to protect the NAACP against aggressive racist encroachment by government officials in the South. That same case actually forms a large part of the basis for what is now expansive corporate speech rights. Alabama argued that the First Amendment didn't protect the NAACP because the NAACP is not an individual person, and the Court disagreed. And it has been cited to explain why like fucking AT&T is now the co-sponsor of the House Judiciary Committee.

31:32 Rhiannon: [laughter] Yeah, yeah, exactly.

31:33 Peter: It's not just that conservatives have rolled back rights established in the Warren Court era, in some cases, they have taken those rights, twisted them around and actively used them to protect the interests of the reactionary movement.

31:44 Rhiannon: Exactly, and it's such a depressing conception of America and the law to me. This opinion, the Boy Scouts v. Dale, it's not like explicitly originalist opinion or anything like that. Like Peter said, they're just doing a balancing test here and coming out on the side that they like. But just the conservative thought process around the law and what the law is supposed to do, if you look at the 14th Amendment, if you look at the First Amendment, these things are clearly designed to protect people in a way that... I don't know, it's exactly what you said, Peter, it's just so clearly that they don't want the Bill of Rights to mean anything more than protecting freedoms for their own, right, for their small group that already has established hegemony.

32:35 Michael: It's like the conception of liberty, where the old adage, I think Lincoln talked about this in one of his addresses, when the shepherd saves the sheep from the wolf, the sheep thank him for protecting them, but the wolf curses him as like tyrannical.

32:51 Rhiannon: Right.

32:52 Michael: Right? And it's like it's the wolf's conception of liberty there, right, where he's being oppressed because he can't go and he can't keep black people out of his diner, he can't keep gay people out of his boys' club.

33:04 Rhiannon: Michael, never be gone again, we need you.

33:09 Peter: I think it's just especially visceral in this case, 'cause you have the Boy Scouts, they're all fucking wearing these uniforms that are like a perfect blend of The Village People and the SS, and they're sitting there telling you that their institutional position is that they should not have to associate with gay people, citing moral straightness and cleanliness, while at the same time, suppressing via what I assume was various high-powered PR firms, what is undoubtedly one of the largest sexual abuse scandals in American history.

33:43 Rhiannon: Yeah, yeah, absolutely.

33:46 Peter: I sort of wonder whether or not the Scouts at the time when they're fighting this case through the '90s, were just sort of backwards enough to think that gays were part of the problem with the sexual abuse scandal, and sort of not recognizing it for what it was, and using these antiquated ideas about gay men, thinking that we have to keep gays out because we have this huge sexual abuse problem, not realizing that a fucking job where you are isolated with children in the goddamn woods is just like pedophile's fucking gold mine.

34:19 Rhiannon: Right, right. It's just, it's scapegoating a minority group that is acceptable for a large part of the population to be discriminated against. And I wanna highlight too the role of the Supreme Court in all of this and in this culture war stuff. We said a couple of times that the Boy Scouts organization now accepts girls, they now accept gay members, they now accept trans members, and that happened because the Boy Scouts organization changed, and it was pretty quick, like within 30 years or whatever. But this Supreme Court case, this precedent, is now law. And so whether the Boy Scouts organization sort of changed for the better, just because social movements and people progress together, we now still have this huge case on the books, and it just shows that the Supreme Court is really slow to respond to social progress, is very rarely going to be driving social progress, if at all, it's just not an institution that's equipped to do that and often actually holds us back.

35:19 Michael: Yeah, that's right.

35:26 Peter: Alright, next week is Nielsen v. Preap, a case about ICE, an organization that we are opposed to.

35:36 Rhiannon: It's another fuck the police episode, y'all.

35:39 Peter: Follow us @fivefourpod on Twitter. Tell your friends and family. And it seems like we have a little bit of time, so I'm just gonna read off some merit badges as we exit. American business.

35:57 Rhiannon: What does that mean?

35:58 Peter: I think it's quite clear. Chemistry, Chess, Citizenship in the Nation.

36:08 Michael: I like that.

36:08 Leon: Coin collecting. Collections, separate. Dentistry.

36:19 Rhiannon: It's just like a creepy 12-year-old who's really into teeth. I don't want you getting a badge for that.

36:26 Michael: No, thank you.

36:30 Peter: Entrepreneurship.

36:31 Rhiannon: It sounds like American Business.

36:31 Peter: Genealogy. Probably used to be phrenology and they had to change that. Landscape architecture.

36:39 Rhiannon: Oh...

36:41 Peter: Law.

36:42 Michael: Nice.

36:42 Peter: Oh, my God.

36:43 Rhiannon: You got a merit badge, guys.

36:45 Peter: Well, not yet. Ask five people about the role of law enforcement officers in our society.

36:53 Rhiannon: No... Oh, my God, so the law merit badge is fucking cop shit.

36:58 Peter: Arrange a visit with a lawyer who works for a business, bank, titled company or government agency. Find out his or her duties and responsibilities and report what you have learned. Why wouldn't they just say any lawyer? Discuss with your counselor the importance in our society of two of the following areas of law: Environmental law, computers and the internet, copyright and the internet. Those are separate. Immigration, patents, biotechnology, privacy law, international law. Famously, the only kinds of law.

37:33 Peter: Back to general merit badges. Medicine, Mining in Society, not just mining. Motor Boating. I can do that.

37:40 Rhiannon: Shut up. Shut up!


37:48 Leon: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Nayfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

38:10 S?: From the Westwood One Podcast Network.