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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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March 20, 2008 1:04 PM

On the primary, gays, the Boy Scouts and a St. Paddy Day parade

Posted by David Postman

Washington’s major political parties had hoped that U.S. Supreme Court decisions allowing exclusion of gays from being scoutmasters in the Boy Scouts or marchers in Boston’s St. Patrick’s Day Parade would mean they could exclude voters from the primary who don’t pledge allegiance to either the Democrats or Republicans.

That set off a debate among justices seen in the three opinions released Tuesday when the court rejected the party’s claims and instead upheld Washington’s non-partisan, top-two primary.

Attorneys for the state Democratic and Republican parties cited in their appeal two cases relating to gays, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., and Boy Scouts of America v. Dale, In Hurley, the Supreme Court said in a 1995 ruling that the state could not require organizers of the St. Patrick’s Day Parade to let in groups that disagree with the organizers' message. In Dale, the court ruled in 2000 that the Boy Scout’s First Amendment rights were violated by a state law that required the scouts to admit a gay scoutmaster.

Washington's political parties want a more restrictive state primary then what the state traditionally had and hoped that those cases would give them the right to say who could and could not participate in the primary elections. But in a footnote in the majority’s opinion, Justice Clarence Thomas wrote that the argument missed the point.

In those cases, actual association threatened to distort the groups’ intended messages. We are aware of no case in which the mere impression of association was held to place a severe burden on a group’s First Amendment rights, but we need not decide that question here.

Chief Justice John Roberts wrote a concurrence in which he tried to draw a bright distinction between Daly and Hurley and the case before the court. He said that if candidates can self-select a party identification, it could force parties to accept candidates they don’t want. That could be a version of these so-called “forced-association” cases, but he said the primary case doesn't pose that problem.

I do think, however, that whether voters perceive the candidate and the party to be associated is relevant to the constitutional inquiry. Our other forced-association cases indicate as much. In Boy Scouts of America v. Dale, 530 U. S. 640, 653 (2000), we said that Dale’s presence in the Boy Scouts would “force the organization to send a message . . . [to] the world” that the Scouts approved of homosexuality. In other words, accepting Dale would lead outsiders to believe the Scouts endorsed homosexual conduct. Largely for that reason, we held that the First Amendment entitled the Scouts to exclude Dale. Id., at 659. Similarly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), we allowed the organizers of Boston’s St. Patrick’s Day Parade to exclude a pro-gay rights float because the float’s presence in the parade might create the impression that the organizers agreed with the float-sponsors’ message.

Voter perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties’ associational rights are adversely implicated. … After all, individuals frequently claim to favor this or that political party; these preferences, without more, do not create an unconstitutional forced association.

So, for Roberts and Justice Samuel Alito, who signed the concurrence, and apparently the rest of the majority as well, it’s OK for groups to exclude gays from their organizations and events but not for the political parties to say they want only like-minded people voting in their primaries.

Justice Antonin Scalia, though, wrote in his dissent that he doesn’t see that distinction. He said that the court did not require the Scouts or the parade organizers to prove their message would be misunderstood to be pro-gay if they included gays. But that was the test the majority in the Washington case said the political parties would have to meet in order to stop a non-partisan primary.

When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. We therefore held, for example, that a State severely burdened the right of expressive association when it required the Boy Scouts to accept an openly gay scoutmaster. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

The Court makes much of the fact that the party names shown on the Washington ballot may be billed as mere statements of candidate “preference.” See ante, at 11-14. To be sure, the party is not itself forced to display favor for someone it does not wish to associate with, as the Boy Scouts were arguably forced to do by employing the homosexual scoutmaster in Dale, and as the political parties were arguably forced to do by lending their ballot-endorsement as party nominee in Jones. But thrusting an unwelcome, self-proclaimed association upon the party on the election ballot itself is amply destructive of the party’s associational rights.

We have never put expressive groups to this perhaps-impossible task. Rather, we accept their own assessments of the matter. The very cases on which THE CHIEF JUSTICE relies for a wait-and-see approach, ante, at 1-2, establish as much. In Dale, for example, we did not require the Boy Scouts to prove that forced acceptance of the openly homosexual scoutmaster would distort their message. See 530 U. S., at 653 (citing La Follette, 450 U. S., at 123-124). Nor in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), did we require the organizers of the St. Patrick’s Day Parade to demonstrate that including a gay contingent in the parade would distort their message. See id., at 577. Nor in Jones, 530 U. S. 567, did we require the political parties to demonstrate either that voters would incorrectly perceive the “nominee” labels on the ballot to be the products of party elections or that the labels would change voter perceptions of the party. It does not take a study to establish that when statements of party connection are the sole information listed next to candidate names on the ballot, those statements will affect voters’ perceptions of what the candidate stands for, what the party stands for, and whom they should elect.

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