Expressive association and organizational autonomy

Minnesota Law Review

Volumn 85, Issue 6, 2001, Pages 1639-1668

  Johnson, Steffen N ^a,b  

^a Mayer Brown and Platt   (United States)

^b UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 0041805283     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (154)

1. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 196 (Phillips Bradley ed., Alfred A. Knopf 10th prtg. 1966) (1835).
2. 2 id. at 106.
3. Id. at 107.
4. Id. at 106.
5. 1 id. at 196; cf. Shelton v. Tucker, 364 U.S. 479, 486 (1960) (observing that the freedom of association is "a right which, like free speech, lies at the foundation of a free society").
6. 120 S. Ct. 2446 (2000).
7. Id. at 2449.
8. Id. at 2452-54; cJ. id. at 2470 (Stevens, J., dissenting).
9. Id. at 2455.
10. Id. at 2465 (Stevens, J., dissenting).
11. Id. at 2460.
12. See id. at 2451 ("Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we are obligated to independently review the factual record to ensure that the state court's judgment does not unlawfully intrude on free expression."). Although the Supreme Court infrequently grants certiorari to resolve factual disputes, it has historically viewed cases in which the factual issue is the degree of showing required to establish a constitutional violation with greater scrutiny, especially in the First Amendment context. See generally Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995); NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); ROBERT L. STERN ET AL., SUPREME COURT PRACTICE §4.14, at 190 (7th ed. 1993).
13. Dale, 120 S. Ct. at 2452.
14. BOY Scours OF AMERICA, THE BOY Scour HANDBOOK 9 (11th ed. 1998) [hereinafter BOY SCOUT HANDBOOK] (bold in original).
15. Dale, 120 S. Ct. at 2452.
16. Joint Appendix at 257, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699) [hereinafter Joint Appendix].
17. Id.
18. See infra text accompanying notes 87-89.
19. Dale, 120 S. Ct. at 2453 (citation omitted).
20. Id. at 2452. The Scouts' later position statements expressed this view in slightly different terms. The Scouts' 1991 position statement stated, "We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts." Id. at 2453 (internal quotation and citation omitted). The Scouts' 1993 position statement explained, The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA. Id. (internal quotation and citation omitted).
21. See, e.g., Joint Appendix, supra note 16, at 99 ("The chartered organization agrees to ... [c]onduct the Scouting program according to its own policies and guidelines as well as those of the Boy Scouts of America.").
22. Dale, 120 S. Ct. at 2449.
23. See id. ("By all accounts, Dale was an exemplary Scout.").
24. See id.
25. Id.
26. Id.
27. Id. (quotation omitted).
28. See, e.g., N.J. STAT. ANN. §§10:5-4,10:5-5 (West Supp. 2000).
29. Joint Appendix, supra note 16, at 11; see also Ex-Eagle Scout Sues Over Ban on Homosexuals, N.Y. TIMES, July 30, 1992, at B4 (quoting Dale as stating, "I owe it to the organization to point out to them how bad and wrong this policy is. Being proud about who I am is something the Boy Scouts taught me. They taught me to stand up for what I believe in.").
30. See supra text accompanying note 14.
31. See generally Dale v. Boy Scouts of Am., 734 A.2d 1196, 1230 (N.J. 1999), rev'd, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000).
32. Id. at 1228.
33. Id. at 1224 n. 12.
34. Id. at 1224 (internal quotation and citation omitted) (alteration in original).
35. Id.
36. Id. at 1226.
37. Id. at 1223.
38. 468 U.S. 609 (1984).
39. Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2451 (2000) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)).
40. Id.
41. Id. at 2451-58. The Court was cryptic in its analysis of the state's interest. Parts of the Court's opinion suggest that Dale did not demonstrate a compelling governmental interest in requiring the Scouts to reinstate him as a leader. See, e.g., id. at 2451, 2456. Other parts of the Court's opinion suggests that once it concluded that enforcement of the state's anti-discrimination law would materially interfere with the Scouts' expression, that was the end of the matter. See id. at 2456-57.
42. Id. at 2452.
43. Id. at 2453 (quotation omitted) (alteration in original). The Court noted, however, that "because the record before us contains written evidence of the Boy Scouts' viewpoint"-in the form of the organization's various position statements on openly gay leaders-"we look to it as instructive, if only on the question of the sincerity of the professed beliefs." Id. Therefore, the Court seemed to view the Scouts' litigation position as sufficient in itself to demonstrate the organization's position, although it found further support for the "sincerity" ofthat position in the organization's internal documents.
44. Id. at 2452.
45. Id. at 2455.
46. Id. at 2451.
47. Id. at 2454.
48. Id. (quotation omitted).
49. Id.
50. Id.
51. Id.
52. Id. at 2455.
53. See generally id. at 2459-78 (Stevens, J., dissenting).
54. Id. at 2461.
55. Id. at 2464.
56. Id.
57. Id. at 2465.
58. Id.
59. Id.
60. Id. at 2466.
61. Id. at 2465.
62. Id. at 2462-63.
63. Id. at 2460.
64. See, e.g., Brief of Amici Curiae Roland Pool & Michael Geller at 4, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), available at 2000 WL 339933 (arguing in Part I of the brief that excluding gays from scouting "Contradicts, Rather Than Reflects, the Well-Expressed Purposes That Bring Members of the Boy Scouts Together").
65. See, e.g., Brief of Amici Curiae The General Board Of Church And Society Of The United Methodist Church et al. at 7, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), available at 2000 WL 339878 (arguing that the Scouts' First Amendment claims should fail because "The Members Of Scouting Do Not Share, And Did Not Come Together To Express, Any View About Homosexuality").
66. In addition to the testimony of the Scouts' National Director, President, and Chief Executive, the Scouts submitted no less than five official policy statements regarding their position on openly gay leaders. These statements included a 1978 position statement to the Scouts' Executive Committee signed by the President and Chief Scout Executive, two 1991 position statements, a 1992 position statement, and a 1993 position statement. See, e.g., Dale, 120 S. Ct. at 2453; id. at 2463-65 (Stevens, J., dissenting); see also supra note 20.
67. Indeed, some regional Scout councils have begun efforts to introduce a resolution that would revise the Scouts' official policy on gays. See Eric Lipton, A Challenge to Gay Ban by Scouts: "Stupid" Policy, Say Local Scout Leaders, N.Y. TIMES, Feb. 27,2001, at A21.
68. See, e.g., Christi Harlan, Bar Association Votes to Back Abortion Rights, WALL. ST. J., Aug. 12,1992, at Bl.
69. See, e.g., Michael Paulson, Women of the Cloth: Journey from Catholicism Leads to Protestant Ministry, BOSTON GLOBE, Feb. 4, 2001, at Al ("Polls show that the majority of American Catholics support the ordination of women," but "[m]any women ... have stayed in the Catholic Church ... often despite disagreement over that issue.").
70. 426 U.S. 696 (1976).
71. Id. at 698.
72. Id. at 702.
73. Id. at 707.
74. Id. at 712-13.
75. 280 U.S. 1 (1929).
76. Millvojevich, 426 U.S. at 711-12 (quoting Gonzales v. Roman Catholic Archbishop of Manila, 280 U.S. 1,16 (1929)).
77. Id. at 708.
78. Id. at 699.
79. Id. at 715-16.
80. Id. at 699.
81. Id. at 718. The Court dismissed as dictum the Gonzales language relied upon by the lower court, as there was no showing of arbitrariness in that case. See id. at 718-19.
82. Id. at 718.
83. Id.
84. Id at 719.
85. Id. at 720.
86. Excised of religious references, the Milivojevich Court's principal holding translates well into the context of nonreligious voluntary associations such as the Scouts: The right to organize voluntary... associations to assist in the expression and dissemination of any [moral] doctrine, and to create tribunals for the decision of controverted questions of [morality] within the association, and for the [executive] government of all the individual members,... and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such [voluntary] bodies, if any one aggrieved by one of their decisions could appeal to the ... courts and have them reversed. It is of the essence of these [voluntary] unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of [executive] cognizance, subject only to such appeals as the organism itself provides for. Id. at 711 (internal quotation and italics omitted).
87. Local groups that wish to affiliate with the Boy Scouts of America must apply annually for a charter, which is granted if the national organization decides that doing so is in "the best interests of the youth of the community" and in compliance with the Scouts' policies. Joint Appendix, supra note 16, at 355-56. Any charter may be revoked (or not renewed) if the Executive Board determines that terminating the charter is advisable. See id. at 356.
88. Id. at 325-31. Every organization that sponsors a troop has a delegate to its local council, and every local council has at least three delegates to the National Council, which elects the National Executive Board. Id. at 308.
89. W. at 329.
90. This is not to say that the First Amendment's protections are limited to expressive associations that are democratically governed. My point is that the members of expressive associations have an important interest in choosing leaders to speak on their behalf, whether democratically or by other means, and that courts should generally defer to the statements of these duly appointed leaders in determining the nature of the association's expression, after concluding that the leaders are authorized to speak on the association's behalf.
91. I do not mean to suggest that nonreligious associations have the same constitutional interest as do churches in limiting governmental interference with their choice of leaders and autonomy over internal affairs. The protections of the Free Exercise Clause, for example, do not extend to nonreligious associations but protect the right of churches to govern themselves. See generally Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981). In addition, both of the religion clauses impose independent constitutional limitations on civil courts' jurisdiction to interpret the religious aspects of religious documents and doctrine. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 716 (1981) ("Courts are not arbiters of scriptural interpretation.").
92. Cf. Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 343-44 (1987) (Brennan, J., concurring) (discussing the chilling effect of anti-discrimination requirements on religious organizations that must anticipate whether a court will understand the moral and religious significance of seemingly secular positions).
93. Milivojevich, 426 U.S. at 714 (internal quotation and italics omitted).
94. Cf. Cousins v. Wigoda, 419 U.S. 477, 490 (1975) (sustaining a First Amendment free association challenge to a state election law that would have interfered with the Democratic Party's control over the selection of delegates to its national convention, on the ground that subjecting "the qualification and eligibility of delegates" to state law "could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates").
95. Dale, 120 S. Ct. at 2464 (Stevens, J., dissenting).
96. Id.
97. Cf. Reply Brief for Petitioners at 2-3, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), available at 2000 WL 432367 (observing that the election process of "'small, unpopular groups'" could ""be easily hijacked by persons who oppose their message" (quoting Brief of Amici Curiae Christian Legal Society et al. at 10-11, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699))).
98. Cf. Brief of Amici Curiae National Catholic Committee on Scouting et al., Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), 2000 WL 235234 (noting that the largest sponsors of scouting organizations support the organization's policy).
99. Dale, 120 S. Ct. at 2464 (Stevens, J., dissenting).
100. The threshold inquiry in any free exercise case, for example, is whether the claimant who seeks an exemption from compliance with the law is sincere. Only after making this finding does the court proceed to determine whether the law burdens the claimant's religious exercise. See, e.g., Frazee v. 111. Dep't of Emp. Sec., 489 U.S. 829,833-34 (1989).
101. For example, Dale might have come out the other way if there had been substantial evidence of instances in which the Scouts had permitted heterosexual leaders to express to youth members that homosexual conduct was consistent with the Scout Oath and Law. The record, however, demonstrated that the Scouts would expel any leader that expressed such a position to boys in the organization. See Dale, 120 S. Ct. at 2473 n.19 (Stevens, J., dissenting).
102. For example, in my community, Oak Park, Illinois, a number of Cub Scout troops that lost their charters for refusing to abide by the Scouts' official policy are considering whether to form an alternative organization. See, e.g., Lisa Black, Oak Park Church Is Denied Cub Scout Pack After Rejecting Gay Policy, CHI. TRIE., Mar. 8, 2001, at 5 (noting that parents are "discus[sing] how best to handle the anti-gay policy, which most opposed," and "looking into forming a new group under the Camp Fire Boys and Girls program"), available at 2001 WL 4049423;
103. cf. James Brooke, In Canada, Gay Pride Can Be Part of Scouts' Honor, N.Y. TIMES, July 3, 2000, at A8 (quoting a spokesman for Scouts Canada as stating, "It's our perspective that sexual orientation has no bearing on the ability of a person to participate in or deliver our programs").
104. Alternatively, such groups might be able to assert an "intimate association" claim under the First Amendment. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 620 (1984) (noting that the First Amendment protects the "formation and preservation of certain kinds of highly personal relationships" from state interference, and that a group's "size, purpose, policies, selectivity, congeniality, and other characteristics" are relevant in determining whether it qualifies as such an association).
105. This is especially so where a group has no reason to think its position conflicts with a law. For example, the New Jersey statute at question in Dale, N.J. STAT. ANN. §§10:5-4, 10:5-5(hh) (West Supp. 2000), was not extended to "afiectional or sexual orientation" until January 18, 1992-eighteen months after the Scouts informed Dale that he could no longer serve as a leader. The New Jersey Supreme Court's decision in Dale, moreover, was the first to hold that the Scouts were a public accommodation subject to the requirements of anti-discrimination laws. One federal appellate court and four state supreme courts had previously rejected that argument. Dale, 120 S. Ct. at 2456 n.3 (citing Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir. 1993); Curran v. Mount Diablo Council of Boy Scouts of Am., 952 P.2d 218 (Cal. 1998); Quinnipiac Council, Boy Scouts of Am. v. Comm. on Human Rights & Opportunities, 528 A.2d 352 (Conn. 1987); Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385 (Kan. 1995); Schwenk v. Boy Scouts of Am., 551 P.2d 465 (Or. 1976)).
106. .Groups may be wise, however, to formalize their positions in light of Justice Stevens's dissenting view and the majority's statement that "written evidence" of a group's viewpoint is "instructive ... on the question of the sincerity of the professed beliefs." Dale, 120 S. Ct. at 2453.
107. Dale, 120 S. Ct. at 2464 (Stevens, J., dissenting).
108. Thomas v. Review Bd., 450 U.S. 707, 714 (1981).
109. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 699 (1976).
110. See, e.g., Robin Gaby Fisher, Scouting Reservations-The Boy Scouts' Ban On Gays Is Causing a Backlash, NEWARK STAR-LEDGER, Feb. 18, 2001, 2001 WL 12711932 (noting that, since the Dale Court's decision, "the backlash in New Jersey and the nation is mounting into a public relations nightmare for this most American-pie of organizations," "sponsors are defecting and patrons are pulling funding," and various religious denominations have expressed disapproval of the Scouts' policy).
111. Brief for Respondent at 24, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), available at 2000 WL 340276 (subheading for Part II.B of Respondent's Brief) (all words capitalized in original).
112. Dale v. Boy Scouts of Am., 734 A.2d 1196,1223 (N.J. 1999), rev'd, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000).
113. Dale, 120 S. Ct. at 2465 (Stevens, «J., dissenting).
114. The parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), for example, did not collaborate to disseminate a view that homosexuality is immoral. This did not deter the Court, however, from holding that requiring them to permit a gay rights group to march in their parade would interfere with their right to decide "what not to say." Id. at 573; see also id. at 574 (observing that the organizing committee "clearly decided to exclude a message it did not like from the communication it chose to make," and concluding that "that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another").
115. Even if a civil court could reliably identify a private association's shared moral interests (a highly dubious proposition), assigning relative weight to those interests would be an inherently subjective, value-laden task for which courts are ill-equipped.
116. See Hurley, 515 U.S. at 573 (noting the "fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message").
117. See Roberts v. U.S. Jaycees, 468 U.S. 609, 636 (1984) (O'Connor, J., concurring).
118. See infra note 126.
119. See Reply Brief for Petitioners, supra note 97, at 5. It would be a sad day if First Amendment protection were limited to either strident "anti-gay" messages ... or their opposites. The claim that Boy Scouting can have no protected position other than one of explicit hostility is an effort to disqualify the middle of the political spectrum so that all remaining opponents can be dismissed as extremists. Id. (citation omitted).
120. Brief of Amicus Curiae Gays and Lesbians for Individual Liberty at 27, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000) (No. 99-699), available at 2000 VfL 228588.
121. Dale, 120 S. Ct. at 2451 (emphasis added).
122. See supra text accompanying notes 14-17.
123. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."); see also Dale, 120 S. Ct. at 2454 (holding that "associations do not have to associate for the 'purpose' of disseminating a certain message in order to be entitled to the protections of the First Amendment").
124. 515 U.S. 557 (1995).
125. Dale v. Boy Scouts of Am., 734 A.2d 1196,1229 (N.J. 1999), rev'd, Boy Scouts of Am. v. Dale, 120 S. Ct. 2446 (2000).
126. Dale, 120 S. Ct. at 2466 (Stevens, J., dissenting) (emphasis added).
127. The Scouts' own literature suggests otherwise. The Boy Scout Handbook, for example, espouses traditional family values and states that a Scout must accept his "Responsibility to Young Women" and his "Responsibility As a Future Parent." BOY SCOUT HANDBOOK, supra note 14, at 376. It also encourages members to look to their scoutmaster for advice concerning sexual relationships: "If you have questions about growing up, about relationships, or about sex, ask. Talk with your ... Scoutmaster." Id. (bold in original). Similarly, the current version of The Official Scoutmaster Handbook directs scoutmasters to "answer [questions of a sexual nature] as honestly as you can." BOY Scours OF AMERICA, THE OFFICIAL SCOUTMASTER HANDBOOK 132 (1998 ed., rev. 2000). Presumably it would have been difficult for James Dale to be open and honest about his views concerning human sexuality without expressing a position different from that of the organization, given his stated view that he "owe[d] it to the organization to point out to them how bad and wrong [their] policy is." Ex-Eagle Scout Sues Over Ban on Homosexuals, supra note 29, at B4.
128. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
129. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
130. Texas v. Johnson, 491 U.S. 397 (1989).
131. Stromberg v. California, 283 U.S. 359 (1931).
132. Cohen v. California, 403 U.S. 15 (1971).
133. Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that requiring the display of the state motto "Live Free or Die" on license plates violated the First Amendment as applied to objecting citizen).
134. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 574 (1995) (holding that the First Amendment protects a group's "right as a private speaker to shape its expression by speaking on one subject while remainnig silent on another"); Brown v. Louisiana, 383 U.S. 131, 141-42 (1966) (holding that the "freedom of speech and of assembly" is "not confined to verbal expression" but includes the freedom "to protest by silent and reproachful presence").
135. Joint Appendix, supra note 16, at 543 (excerpting the 1972 Scoutmaster's Handbook).
136. Cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 636 (1984) (O'Connor, J., concurring) ("Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for selfimprovement.").
137. Refusing to appoint an openly gay leader also sends a message, and one that presumably is quite hurtful to those who are gay.
138. See, e.g., Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 224 (1989) ("Freedom of association means ... a right to identify the people who constitute the association,... and to select a standard bearer who best represents the party's ideologies and preferences." (internal quotations and citations omitted)).
139. 468 U.S. 609 (1984).
140. Id. at 633 (O'Connor, «I., concurring).
141. Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695, 1696 (1993); see also Fricke v. Lynch, 491 F. Supp. 381, 384-85 (D.R.I. 1980) (finding that a gay student's desire to attend the prom with a male date had "expressive content" with "political" dimensions);
142. WILLIAM N. ESKRIDGE, JR., GAY LAW: CHALLENGING THE APARTHEID OF THE CLOSET 176 (1999) ("An admission of sexual identity is expressive in the strictest sense of the word."); id. at 306 ("Coming out of the closet as a gay person is an act of self-identification that is also an explicitly political act.").
143. Dale exemplified this view. He alleged that he sought to be open and honest about his sexual orientation, and that "the only gay Scouts singled out for exclusion are those ... who .'.. become leaders in their community and are open and honest about their sexual orientation." Joint Appendix, supra note 16, at 11. Thus, even if one accepts that the presence of a gay scoutmaster would not interfere with the Scouts' teaching on issues of sexuality, Dale was a case in which conflict with the Scouts' teaching was more than an abstract possibility. Indeed; in a press interview printed in the New York Times, Dale explained that he "owed it to the organization to point out to them how bad and wrong the policy is." Id. at 513 (excerpting the New York Times interview).
144. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 70 (1984) (rejecting a freedom of association claim by a private law firm seeking to discriminate in employment).
145. This is not to say that commercial entities are necessarily nonexpressive in character, or that noncommercial entities are necessarily expressive in character. A discussion of the differences between commercial and noncommercial entities and the constitutional significance of those differences, however, is beyond the scope of this Essay.
146. See, e.g., Roberts, 468 U.S. at 623.
147. See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); cf. 2 TOCQUEVILLE, supra note 1, at 117 n.l (arguing that if the government were given discretion to declare "which associations are dangerous and which are useful," then "the spirit of association would be entirely paralyzed").
148. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
149. Roberts, 468 U.S. at 622.
150. Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, 85 MlNN. L. REV. 1515,1550 (2001).
151. Roberts, 468 U.S. at 619.
152. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 37 (1993).
153. For example, the content-neutrality requirement increases freedom of speech when applied to the government, Carey v. Brown, 447 U.S. 455 (1980), but decreases that freedom when applied to private entities, Hurley v. IrishAm. Gay, Lesbian, & Bisexual Group, 515 U.S. 557 (1995). Likewise, the religious nondiscrimination requirement increases religious freedom when applied to the state, McDaniel v. Paty, 435 U.S. 618 (1978), but decreases religious freedom when applied to private organizations, Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987).
154. Dale, 120 S. Ct. at 2477 (Stevens, J., dissenting).