Minnesota Law Review
To many who support equal civil rights for gay people, it certainly seems so. 2 In Dale, after all, the Supreme Court held that the First Amendment allowed the Boy Scouts of America (BSA) to exclude an openly gay scoutmaster despite a state law forbidding such discrimination. 3 More broadly, the rationale for the decision - based on the BSA's right of expressive association - has raised fears (for some, hopes) that the Court might be moving toward a sweeping review of the constitutionality of numerous state and federal statutes forbidding discrimination in business-related clubs, public accommodations, and even employment. 4 At the very least, Dale may have called a constitutional halt to the expansion of these anti-discrimination statutes into new areas, like non-business-related membership organizations, traditionally regarded as private.
Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, 85 Minn. L. Rev. 1515 (2001), available at http://scholarship.law.umn.edu/faculty_articles/146.