Simply so Different: The Uniquely Expressive Character of the Openly Gay Individual after Boy Scouts V. Dale

Abstract:     
Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, and without one further affirmative act of advocacy, he broadcasts the message that, at a minimum, he is not ashamed of his homosexuality and he does not believe that it is immoral. According to the majority, this message was at odds with the Boy Scouts' requirements that a Scout be morally straight and clean.

There is nothing particularly surprising or new about the contention that an openly gay individual speaks volumes. The contemporary gay rights movement is based on a commitment to openness and visibility that privileges coming out. With equal vigor, the traditional values organizations decry gay role models, protest homosexual encroachment in the schools, and condemn any entity which gives openly gay individuals a platform. From their perspective, an open avowal of homosexuality not coupled with shame is a statement of militant homosexual pride.

Despite this popular understanding of the expressive power of the avowed homosexual, Dale and the dissenters steadfastly denied that a human being could be speech and emphasized equality norms, arguing that Dale was really the same as the heterosexual scout master or the same as the (presumably heterosexual) African-American scout master. Rather than deny the expressive character of the openly gay individual, this Article argues that it should embraced and deployed strategically. In other settings, the recognition that an avowal of homosexuality telegraphs a message of public concern could lead to greater First Amendment protection for openly gay individuals. Justice Stevens states that this construction smacks of a constitutionally prescribed symbol of inferiority, but it remains, at least for now, the political reality of the openly gay individual. As long as homosexuality continues to be the subject of contentious political debate, the existence of openly gay individuals will speak volumes.

Number of Pages in PDF File: 78

Keywords: expressive conduct, Boy Scouts, LGBT, gay, lesbian, freedom of expression, expressive speech, gay identity, First Amendment, culture war, traditional values, gay male stereotypes, closet, gay liberation, openly gay, avowed homosexual, sexual predator, gay role models, jame dale, dale v boy scouts

JEL Classification: J78, K19

Accepted Paper Series