Warning: labeling constitutions may be hazardous to your regime

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Author: Suzanna Sherry
Date: Summer 2004
From: Law and Contemporary Problems(Vol. 67, Issue 3)
Publisher: Duke University, School of Law
Document Type: Article
Length: 10,051 words

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"No answer is what asking the wrong question begets. ..." (1)



What do the following cases have in common? In Boy Scouts of America v. Dale, (2) the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of sexual orientation. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, (3) the Court upheld the right of parade organizers to exclude gay-rights banners. In Zelman v. Simmons-Harris; the Court permitted government funding of religious schools through vouchers issued to low-income parents. And in Rosenberger v. Rector and Visitors of the University of Virginia, (5) the Court required state funding of the printing costs of a proselytizing religious publication. In each of these cases, a comparatively "conservative" association was pitted against "progressive" ideals. In each of these cases, the Court sided with the association. Do these cases therefore represent a conservative interpretation of the First Amendment? In particular, is a conservative Court overprotecting conservative associations that are intermediate between the family and the state? (6)

I would suggest that labeling these cases as conservative is a mistake. Each can be described in either liberal or conservative terms. (7) It is progressive to allow citizens to come together in smaller communities that define their own goals and values, even if--or maybe especially if--those values are at odds with those of the larger polity. (8) The state should not be permitted to impose its own values on such communities, whether it does so directly by imposing membership requirements or indirectly by withholding funding. On the other hand, it is conservative to allow individuals to segregate themselves from those they consider inferior or offensive because such segregation diminishes the equal citizenship status of the excluded groups. It is also conservative, in a religiously pluralist society, to use coercively raised monies to fund organizations whose primary mission is the teaching of specific religious doctrine.

A better way to approach these cases, and to discuss their common failures, is to recognize that there are important, non-ideological values at stake on both sides of each of these cases. In Dale and Hurley, the liberty of individuals and associations to choose their own communities, to take stances in opposition to the polity's values, and to define themselves as they see fit conflicted with the polity's interest in ensuring equality for all citizens. In Zelman and Rosenberger, the positions are reversed: The interest in equal treatment of religious and nonreligious organizations conflicted with an individual liberty interest in not being forced to subsidize another's religion. The critical question, then, is how we resolve the frequent tension between liberty and equality. (9) The answer depends not on politics, but on the weight we give to each value in the particular context of each case.

This analytical framework allows us to draw some conclusions about the Supreme Court's First Amendment jurisprudence. In the context of speech and association, the Court has, for almost half a century, been...

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Gale Document Number: GALE|A125875233