Professors Erwin Chemerinsky and Catherine Fisk take an issue on several grounds with Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts have a first Amendment right to exclude gays, even though state law prohibits such discrimination. They first criticize Dale's holding that courts must accept the group leadership's characterization of the group's expressive message. The Court's approach short-circuited the process by which an organization ordinarily develops or transforms its expressive message--internal deliberation, public articulation of a message, and recruitment of like-minded members-- and it did so at the expense of many current and former scouts who reasonably believe that homophobia is not the Boy Scout's expressive message. Second, Professor's Chemerinsky and Fisk argue that inclusion of gays would not undermine the Boy Scout's expressive message. They also point out that having gays as scouts or scout leaders is conduct, not speech. Governments can regulate expressive conduct when there is an important governmental interest (such as ending discrimination) unrelated to the suppression of the expressive message, and the impact on the communication is no greater than necessary to achieve its goal. Finally, even if they Boy Scouts does have an expressive interest in excluding gays, Professors Chemerinsky and Fisk argye that Dale is wrong for two reasons. First, antidiscrimination laws are neutral of general applicability with which individuals and groups must comply even when the laws impinge on protected First Amendment speech or conduct. Second, the elimination of discrimination is a compelling governmental interest which antidiscrimination laws are narrowly tailored to achieve.
Erwin Chemerinsky & Catherine Fisk, The Expressive Interest of Associations, 9 William & Mary Bill of Rights Journal 595-618 (2001)