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View Diary: SCOTUS Gets It Right on Military Recruiting (212 comments)

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  •  Except that... (none)
    The flaw in SCOTUS' Dale decision was that they completely ignored BSA's own stated values over its entire history and allowed them to create a new "value" out of thin air. The meaning of "morally straight" was consistent over the entire history of the BSA handbook. Heterosexual was nowhere in it.
    •  Yes. (none)
      You're right -- you definitely know your SCOTUS opinions!  I didn't want to get too deep into Dale, but I agree with you completely.  My biggest problem with Dale is how the court completely allows the Boy Scouts to invent their "expressive message" out of thin air.  It seems like a group should have to at least make some showing that they've had an established "expressive message" of such-and-such... but the Dale court just takes the Boy Scouts' asserted "expressive message" at face value.

      This is a bad test, because groups can just spontaneously concoct an "expressive message" expressly for the purpose of litigation, in order to make the discrimination that they practice seem to be a part of that message.  A court shouldn't just defer completely to an organization's unsupported claim that its "expressive message" is, and has historically ben, what they claim it is in the litigation...

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