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Clarence Thomas on Civil Rights

Supreme Court Justice (nominated by Pres. Bush Sr. 1991)


Affirmative action forever discounts black achievements

Affirmative action (though it wasn't yet called that) had become a fact of like at American college and universities, and before long I realized that those blacks who benefited from it were being judged by a double standard. As much as it stung to be told that I'd done well in the seminary DESPITE my race, it was far worse to feel that I was now at Yale BECAUSE of it. I sought to vanquish the perception that I was somehow inferior to my white classmates by obtaining special permission to carry more than the maximum number of credit hours and by taking a rigorous curriculum of courses in such traditional areas as corporate law, bankruptcy, and commercial transactions. How could anyone dare to doubt my abilities if I excelled in such demanding classes?

It was futile for me to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever after to discount my achievements.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p. 74-75 , Oct 1, 2007

Analyzed and advocated unpopular positions on race

The problem with my "adverse impact" analysis, of course, was that it was of no help to those black students who had already finished law school and now found themselves unable to pass the bar exam. But the adverse-impact theory had its own built-in problem, which was that its advocates appeared to be suggesting, knowingly or not, that blacks could never catch up with whites. Neither alternative was attractive to me, and I had no easy solution of my own to offer, but at least I'd thought the problem through for myself instead of jumping to a quick and easy conclusion that might be emotionally satisfying but failed to fit the facts. This, I decided, was the right way to approach any problem that excited my passions, and if it led me to disagree with the solutions that were generally accepted, or to advocate positions that would make me unpopular--especially when it came to matters of race --then so be it.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p. 80 , Oct 1, 2007

Black problems should be solved by blacks

The problems faced by blacks in America would take quite some time to solve, and the responsibility for solving them would fall largely on black people themselves. It was far more common in the seventies to argue that whites, having caused our problems, should be responsible for solving them instantly, but while that approach was good for building political coalitions and soothing guilty consciences, it hadn't done much to improve the daily lives of blacks.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.105-106 , Oct 1, 2007

Preferential policies should apply to disadvantaged whites

Preferential policies intended to help blacks adjust to life after segregation were very much on my mind in those days, and now I began to think them through in a more systematic way. Talented blacks stuck on the bottom rung of the socioeconomic ladder clearly deserved such help, but the ones who most often took advantage of it were considerably higher up on the ladder. Most of the middle-class blacks with who I discussed these policies argued that all blacks were equally disadvantaged by virtue of their race alone. I thought that was nonsense. Not only were some blacks more economically successful than others, but many light-skinned blacks believed themselves to be superior to their darker brethren, an attitude that struck me as not much different from white racism. And I also thought the same politics should be applied to similarly disadvantaged whites.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p. 56 , Oct 1, 2007

Affirmative action has stigmatizing effects

Affirmative action (though it wasn't yet called that) had become a fact of life at American college and universities, and before long I realized that those blacks who benefited from it were being judged by a double standard. As much as it stung to be told that I'd done well in the seminary DESPITE my race, it was far worse to feel that I was now at Yale BECAUSE of it. I sought to vanquish the perception that I was somehow inferior to my white classmates by obtaining special permission to carry more than the maximum number of credit hours and by taking a rigorous curriculum of courses in such traditional areas as corporate law, bankruptcy, and commercial transactions. How could anyone dare to doubt my abilities if I excelled in such demanding classes?

But it was futile for me to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever after to discount my achievements.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p. 74-75 , Oct 1, 2007

Questions "adverse impact": blacks can catch up with whites

The problem with my analysis, of course, was that it was of no help to those black students who had already finished school and now found themselves unable to pass the bar exam. But the adverse-impact theory had its own built-in problem, which was that its advocates appeared to be suggesting, knowingly or not, that blacks could never catch up with whites. Neither alternative was attractive to me, and I had no easy solution of my own to offer, but at least I'd thought the problem through for myself instead of jumping to a quick and easy conclusion that might be emotionally satisfying but failed to fit the facts. This, I decided, was the right way to approach any problem that excited my passions, and if it led me to disagree with the solutions that were generally accepted, or to advocate positions that would make me unpopular--especially when it came to matters of race --then so be it.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p. 80 , Oct 1, 2007

Black problems should be solved by blacks

The popular political answers of the day, I saw, had hardened into dogma, making anyone who questioned them a heretic. Having turned my back on religion, I saw no reason to accept mere political opinions as gospel truth.

The problems faced by blacks in America would take quite some time to solve, and the responsibility for solving them would fall largely on black people themselves. It was far more common in the seventies to argue that whites, having caused our problems, should be responsible for solving them instantly, but while that approach was good for building political coalitions and soothing guilty consciences, it hadn't done much to improve the daily lives of blacks.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.105-106 , Oct 1, 2007

Improve black lives, consistent with conservative values

What I cared about more than anything else, I decided, was the condition of blacks across America. The only way I could hope to find personal fulfillment was to spend the rest of my life trying to make their lives better, & to do so in a manner that was consistent with the way Daddy had raised me. As a young radical, I had found it easy to cloak my belief in the necessity of black self-reliance in the similar-sounding views of Malcolm X & the Black Muslims. It wouldn't be so easy now. To unhesitatingly proclaim the rightness of Daddy's way of life would be to court ridicule. Though I feared the consequences of saying so publicly, I knew that someday I would have to confront that fear.

Sen. Danforth wanted me to come join his staff. I said I was interested, so long as I wouldn't have to work on civil-rights issues or matters involving race. Though I cared deeply about these issues, I knew I wasn't yet ready to expose myself to the bruising criticism that would follow once my views became known.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.118-119 , Oct 1, 2007

Censure Bob Jones University for interracial dating ban

Bob Jones University was a Christian college and seminary in South Carolina that maintained a number of racially discriminatory policies, including a ban on interracial dating among its students. The Internal Revenue Service revoked the university's tax-exempt status because of these policies. I supported the original IRS decision and was shocked when the Justice Department backed down and let the university off the legal hook.

I came close to resigning from the Department of Education over the Bob Jones case. The only reason I stayed was because I still believed in the Reagan administration's commitment to limiting the role of the federal government in the lives of blacks (and everyone else). I feared that the unintended effects of social-engineering policies like urban renewal would be at least as bad as the problems themselves. Above all I wanted to do what I could to keep historically black colleges from being thoughtlessly swept away in the rush toward integration.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.146-147 , Oct 1, 2007

EEOC had difficulty enforcing equal opportunity laws

EEOC had great difficulty in enforcing the equal-opportunity laws. At EEOC, I inherited a major case involving General Motors. The GM settlement included a payment of more than $40 million, of which more than $10 million was to be distributed to various colleges for permanent endowments to assist deserving students, preferably minority and female employees of GM. Many endowments were established at historically black colleges and universities.

My main quarrel with the Reagan administration as that I thought it needed a POSITIVE civil-rights agenda, instead of merely railing against quotas and affirmative action. This was my top priority at EEOC: to do what I could to make things better for ordinary people. I regarded the General Motors settlement as a prime example of what I thought the EEOC ought to be doing.

Toughening EEOC's approach to enforcement, improving its management, and automating its data processing were our main priorities at EEOC--and our biggest successes.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.153-187 , Oct 1, 2007

Coloradans entitled to be hostile toward homosexual conduct

Supreme Court nominee John Roberts donated his time to work behind the scenes for gay rights activists--and helped win a decision that's been hailed as the "single most important positive ruling" for the gay rights movement.

In 1995 Roberts agreed to help represent the gay rights activists as part of his law firm's pro bono work. The case before the Supreme Court, Romer vs. Evans, dealt with a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing. A 6-3 ruling striking down the initiative was handed down in May 1996.

One gay activist called the Supreme Court ruling the "single most important positive ruling in the history of the gay rights movement." Antonin Scalia--who was joined in his dissent by Clarence Thomas and William H. Rehnquist--said: "Coloradans are entitled to be hostile toward homosexual conduct."

Source: NewsMax.com. "Roberts helped Gay Rights" , Aug 4, 2005

Don't recognize GLBT as a constitutionally-protected class

In "Romer v Evans", the Supreme Court struck down, 6-3, the Colorado constituent's provision that homosexual, lesbian, or bisexual status should not entitle any person to claim quota preferences, protected status, or discrimination. Thus, a women with a room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. The Supreme Court held, nevertheless, that the state's decision to withdraw this special protection, which it was not required to give in the first place, was motivated only by "animus" and so could not stand under the rationale of the equal protection clause.

The decision is an unsupported victory for homosexual activists. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a "rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."

Source: Slouching Towards Gomorrah, by Robert Bork, p.112-114 , Dec 16, 2003

Limit employer liability for sexual harassment by employees

The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor’s conduct. As a result, employer liability is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. The standard of employer liability should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor’s conduct to occur.

I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault.

Source: Burlington v. Ellerth, 97-569, dissenting opinion , Jun 26, 1998

Employee must prove negligence to sue city for harassment

For the reasons given in my dissenting opinion in Burlington Industries v. Ellerth, ante, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the City is not vicariously liable for the conduct of [the petitioner’s supervisors]. Because the Court reverses this judgment, I dissent.
    As for petitioner’s negligence claim, I disagree with the Court’s conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. The City should be allowed to show either that:
  1. there was a reasonably available avenue through which petitioner could have complained to a City official
  2. or that it would not have learned of the harassment even if the policy had been distributed.
  3. Petitioner would bear the burden of proving the City’s negligence.
Source: Faragher v. Boca Raton, 97-282, dissenting opinion , Jun 26, 1998

Tension between affirmative help and undermining dignity

SENATOR SPECTER: You were quoted in Atlantic Monthly saying, “There is nothing you can do to get past black skin. I don’t care how educated you are, how good you are at what you do, you’ll never know the same contacts or opportunities, you will never be seen as being equal to the whites.” Why is it that you come down so strongly against any group action?

JUDGE THOMAS: I made it clear during my tenure as the Chairman of EEOC that racism and discrimination had to be eliminated. We all have to do as much as possible to include members of my race, minorities, women, anyone who is excluded into our society.

SPECTER: What is the best way to do it?

THOMAS: You have a tension, you want to do that and, at the same time, you don’t want to discriminate against others. You want to be fair, at the same time you want to affirmatively include. Whatever we do, we [should] not undermine the dignity, self-esteem and self-respect of anybody or any group that we are helping. That has been central to me.

Source: Senate Confirmation Hearings , Sep 11, 1991

Reaching out to minorities is OK; but no quotas

SENATOR BROWN: One of the charges that has been brought against you in this nominating process is that you benefited by quotas or affirmative action, but do not support them. The question is directly in entry to Yale, were you part of an affirmative action quota?

JUDGE THOMAS: Senator, I have not during my adult life or during my academic career been a part of any quota. The effort on the part of Yale during my years there was to reach out and open its doors to minorities whom it felt were qualified, and I took them at their word on that, and I have advocated that very kind of affirmative action and I have done the exact same thing during my tenure at EEOC, and I would continue to advocate that throughout my life.

Source: Senate Confirmation Hearings , Sep 11, 1991

Supports scholarships & internships for minorities & women

When I had the opportunity to establish a program at EEOC that provided scholarships for minorities and women, I did. That program now has about $10 million in endowments. When I had an opportunity to participate in establishing a program here in Washington for minority interns, I did. I think that it is important for them to be here, to participate in this process, to learn from this process, to grow. I wish that when I was a kid I had had this opportunity also.
Source: Senate Confirmation Hearings , Sep 10, 1991

Sodomy laws are uncommonly silly but states can enforce them.

Justice Thomas wrote the dissent on Lawrence v. Texas on Jun 26, 2003:

In a landmark 6-3 ruling, the Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states where they remained in existence, thereby making same-sex sexual activity legal in every state. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

HELD: Delivered by Kennedy, joined by Stevens, Souter, Ginsburg, Breyer; O'Connor concurring

In reversing a Texas court ruling, the Court overruled its previous decision in Bowers v. Hardwick, holding that a Texas statute prohibiting certain sexual acts--namely those between same-sex partners--violates the Due Process Clause of the Fourteenth Amendment. The Supreme Court voted 6–3 to strike down the Texas law, and Sandra Day O'Connor found that it violated equal protection guarantees.

DISSENT #1: By Scalia, joined by Rehnquist, Thomas

Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, might now be open to doubt. Scalia also criticized the writers of the opinion for their unwillingness to give the same respect to the decision of stare decisis that some of them applied in Casey. Scalia also averred that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers's validation of laws based on moral choices.

DISSENT #2: By Thomas

The law which the Court struck down was "uncommonly silly", but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.
Source: Supreme Court case 03-LAWR-TX argued on Mar 26, 2003

1st Amendment protects church's anti-gay funeral pickets.

Justice Thomas joined the Court's decision on SNYDER v. PHELPS on Mar 2, 2011:

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).

HELD:Delivered by ROBERTS, joined by SCALIA, KENNEDY, THOMAS, GINSBURG, SOTOMAYOR, BREYER & KAGAN

The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.

CONCURRED: BREYER concurs

The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.

DISSENT: ALITO dissents

The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.
Source: Supreme Court case 11-SNYDER argued on Oct 6, 2010

Sociological analysis insufficient to prove gender bias.

Justice Thomas joined the Court's decision on WAL-MART v. DUKES on Jun 20, 2011:

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.

HELD: Delivered by SCALIA; joined by ROBERTS, KENNEDY, THOMAS & ALITO

The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof. That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

DISSENTED: GINSBURG concurs in part, dissents in part; joined by BREYER, SOTOMAYOR & KAGAN

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.
Source: Supreme Court case 11-WALMART argued on Mar 29, 2011

State laws should not protect gay rights.

Justice Thomas joined the dissent on Romer v. Evans on May 20, 1996:

An amendment to the Colorado state constitution that would have prevented taking any action to recognize gay and lesbian citizens as a protected class was passed by voters in a referendum. Romer v. Evans is a landmark Supreme Court case; the first dealing with gay rights since Bowers v. Hardwick (1986), when the Court had ruled that a law criminalizing homosexual sex was constitutional.

HELD: By Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, Breyer

The court ruled 6-3 that Colorado's Amendment was unconstitutional. Rejecting the state's argument that the Amendment merely blocked gay people from receiving "special rights", Kennedy wrote, "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups that they protected, this merely served to put others on notice.

DISSENT: By Scalia, joined by Rehnquist, Thomas

The dissent states that the Colorado amendment is "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective is unimpeachable under any constitutional doctrine." Scalia argued that the Amendment did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. Scalia concluded, "Today's opinion has no foundation in American constitutional law, and barely pretends to. [The Colorado amendment] does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment."
Source: Supreme Court case 96-ROMER argued on Oct 10, 1995

Hate crimes must be separate crimes, not just for sentencing.

Justice Thomas wrote the concurrence on APPRENDI v. NEW JERSEY on Jun 26, 2000:

Apprendi fired several shots into the home of an African-American family and made a statement that he did not want the family in his neighborhood because of their race. He was charged with possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence [for racial intimidation]. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count.

Held:

(Stevens, joined by Souter, Ginsburg, Scalia & Thomas)
The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Concurrence:

(Thomas & Scalia)
My view is that the Constitution requires a broader rule than the Court adopts. If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—then the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.

Dissent:

(O’Connor, joined by Rehnquist & Breyer)
Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” The Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of legislatures.
Source: Supreme Court case 99-478 argued on Mar 28, 2000

Miranda rights can be overruled by Congress.

Justice Thomas joined the dissent on DICKERSON v. UNITED STATES on Jun 26, 2000:

Mr. Dickerson, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the FBI, on the ground he had not received “Miranda warnings” before being interrogated. The Government appealed [on the grounds that] his statement was voluntary [as allowed by a Congressional law]. That court concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question.

Held:

(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
In Miranda v. Arizona (1966), we held that certain warnings must be given before a suspect’s statement could be admitted in evidence. Congress then enacted a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.

Dissent:

(Scalia, joined by Thomas)
Today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda. Marbury v. Madison (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that [the law in this case] violates the Constitution. [Instead, the Court is adopting] a significant new principle of constitutional law, in which statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” I dissent.
Source: Supreme Court case 99-5525 argued on Apr 19, 2000

Boy Scouts may exclude gay scoutmasters.

Justice Thomas joined the Court's decision on BOY SCOUTS OF AMERICA v. DALE on Jun 28, 2000:

The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is not absolute; it can be overridden by regulations adopted to serve compelling state interests.

Dissent:

(Stevens, joined by Souter, Ginsburg, & Breyer)
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.”

The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey’s law, therefore, abridges no constitutional right of the Boy Scouts.

Source: Supreme Court case 99-699 argued on Apr 26, 2000

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