More liberal open-mindedness from the last bastion of tolerance


Roger Ho, Esq., who provided an amicus brief in this case (cool), advises that the First DCA (District Court of Appeals to you landlubbers) has ruled that Berkeley can retaliate against the Sea Scouts for the position that the Boy Scouts of America takes on homosexuality.

There is a certain appeal to this position. Federalism and conservative principles favor the notion that local communities should have substantial latitude in defining the contours of a community's morality. There is also something satisfyingly conservative in describing governmental actions as "privileges" and not "rights." Further, the Scouts have staked out a position as a private association, and so there is a "biter bit" irony to taking them at their word and denying them public benefits.

Here's the problem. All of those arguments have been made in the past when it was a conservative community challenging a broader liberal attitude, and it has never been permitted. The law does not allow a community to condition its grant of privileges or benefits on the content of a group's message. It also recognizes that withdrawing benefits after they have been granted is constitutionally noxious. Hence, a community library cannot remove a book from the shelves based on the book's content [although it may be able to decide not to purchase the book based on its content. [ See Board of Education v. Pico. ] Likewise, a community cannot pass a law stating that homosexuals are not a protected class for the purposes of its local anti-discrimination laws. [See Romer v. Evans (1996)

Both actions were assessed by the U.S. Supreme Court as involving content-based actions that sought to stigmatize a particular viewpoint.

Now, I personally disagreed with this analysis when it was pronounced. But, gosh, it sure was popular with folks at the New York Times and in Berkeley at the time. It is as they say, the law. Sauce for the goose, sauce for the gander. It all depends on whose ox is gored, etc. It seems now that the good folk of Berkeley are trying to stigmatize a particular viewpoint by through state action. The only way to see a difference is to be able to understand that those cases involved a bunch of anti-freedom book burners and this case involves courageous freedom fighters. In other words, it's the message that counts.

Perhaps the Left will find a new vitality in legal doctrines allowing greater flexibility to community actions against noxious political viewpoints. After all, they were able to reverse field on the wisdom of the Independent Counsel law once it started being applied to democrats. [Another constitutional decision that I was not alone in viewing as questionable from the outset. See Morrison v. Olson.]