Boy Scouts of America v. District of Columbia Commission on Human Rights ( 2002 )

REID, Associate Judge,

concurring.

I join Judge Farrell’s opinion because I agree that “[this] case cannot be distinguished from Dale on First Amendment grounds.” I write separately to emphasize two aspects of the Supreme Court’s opinion in Dale.

First, the Dale majority characterizes the Boy Scouts of America (“BSA”) as “a private not-for-profit organization engaged in instilling its system of values in young people.” Dale, supra, 580 U.S. at 643, 120 S.Ct. 2446. Undoubtedly parents of boy scouts entrust scoutmasters to play a role in the education and socialization of their sons, and in turn expect their sons to inculcate the value system articulated by the BSA. This view of the BSA’s role reflects a predominantly expressive organization, and does not take into consideration the range of BSA’s commercial activities which might be evident in another context or case, to such an extent that the BSA would be perceived as a predominately commercial organization. See Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (O’Con-nor, J., concurring); see also Neal Troum, Expressive Association and the Right to Exclude: Reading Between the Lines in Boy Scouts of America v. Dale, 35 CREIGHTON L. REV. 641 (2002).

Second, the Dale majority declared that the court “must ... give deference to an Association’s view of what would impair its expression.” Nonetheless, Chief Justice Rehnquist, speaking for the majority, added the following caveat: “That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.” Dale, supra, 530 U.S. at 653, 120 S.Ct. 2446. Although we do not address the District of Columbia Human Rights Act issue presented in this case, I believe that this court should keep the Dale majority’s caveat in mind since it may become pertinent in a future case presenting a different context.