On Boy Scouts and Anti-Discrimination Law: The Associational Rights of Quasi-Religious Organizations
63 Pages Posted: 6 Apr 2008
Abstract
This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts since Boy Scouts of America v Dale. Second, the article canvasses current First Amendment law, focusing on the freedoms of religion, association, and speech, and demonstrates how existing law marginalizes the religious aspects of organizations like the Boy Scouts. Third, the article introduces the concept of quasi-religious organizations and develops a tripartite framework for applying the concept in practice. Finally, the article applies this framework to organizations like the Boy Scouts.
Keywords: First Amendment, free exercise, freedom of religion, freedom of association, freedom of speech, religion, anti-discrimination, boy scouts, BSA, quasi-religous, assocations, organizations, Dale, religious, secular
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