This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines “sexual identity” as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual “equality” upon the silencing of gay, lesbian, bisexual, and transgender individuals.
This Article proceeds in five parts. Part I provides an introduction to the case and issues.Part II discusses the evolution of the right of expressive association and examines the constitutional test, developed in the Roberts line of cases, used to analyze purported conflicts between associational freedoms and governmental civil rights enforcement. Part II then uncovers the Court's closeting of Roberts in Dale by examining how Dale materially, yet quietly, departs from the Roberts framework. Part III criticizes the Court's failure to acknowledge the expressive nature of gay, lesbian, bisexual, and transgender identity specifically, and, more broadly, the expressive and active components of all forms of social identity. Part III also demonstrates how the Court's dichotomizing of speech and identity constricts the reach of equality doctrine. Part IV analyzes the Court's obfuscation of its apparent disagreement with the fundamentals of the Roberts doctrine and its insensitivity toward antiheterosexist equality efforts. Part V makes suggestions for redirecting First Amendment jurisprudence away from conditioning gay, lesbian, bisexual, and transgender equality upon the invisibility of sexual minorities and toward a jurisprudence that “accommodates outness.” Specifically, Part V argues that the Roberts doctrine provides a more balanced treatment of the sometimes competing interests of equality and speech. Accordingly, only a return to the more “substantial” analysis of the expressive association defenses that the Court used in Roberts can ensure that equality is only sacrificed in order to protect true speech goals. Part V then considers how the outcome of Dale would have differed under a more substantial--and honest--evidentiary analysis. Finally, Part V urges the Court to recognize the speech dimensions of gay, lesbian, bisexual, and transgender identity and to discard its archaic understanding of identity as a fixed or clinical quantity--a conceptualization that contradictorily conditions “equality” on the silencing of sexually oppressed classes.
Darren Lenard Hutchinson, “Closet Case”: Boy Scouts of America V. Dale and The Reinforcement of Gay, Lesbian, Bisexual, and Transgender Invisibility, 76 Tul. L. Rev. 81 (2001), available at http://scholarship.law.ufl.edu/facultypub/392