Signs of the Times: Dale V. Boy Scouts of America and the Changing Meaning of Nondiscrimination

Abstract

All antidiscrimination laws are unconstitutional in all their applications. Citizens are allowed to disobey laws whenever obedience would be perceived as endorsing some message. Both of these propositions are absurd. However, the Supreme Court's opinion in Dale v. Boy Scouts of America stands for at least one of them, and perhaps both. The already voluminous commentary on Dale is too polite, because almost all of it fails to notice the sheer lunacy of what the Court said. The Court's disastrous opinion offers a useful cautionary lesson in First Amendment jurisprudence: determinations of what is protected speech cannot defer either to individual speakers or to the culture as a whole, because such deference produces bizarre results.