Hastings Constitutional Law Quarterly


Mae Kuykendall


The First Amendment associational freedom analysis of the 2000 culture wars case of Boy Scouts of America v. Dale adopts an understanding of conventions permitting (or mandating) silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scoutmasters, despite a New Jersey statute barring such discrimination from a "public accommodation." The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence.

This Article revisits Dale, using the understanding of the gay persona, accepted at the time, as chaotically and unmanageably communicative, as well as disruptive of preferred silence, to explore the implications of Dale for civic engagement and for the movement of the Court toward endorsing silos for identity, couched in various terms, that permit groups to withdraw from interaction with contrary views and identities. The Court's failure to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry.