THE CONSTITUTION ON SCOUT'S HONOR:
THE FIRST AMENDMENT
AND STATE TREATMENT OF THE BOY SCOUTS

A Discussion Sponsored by the Federalist Society
at the National Press Club
Tuesday, February 3, 2004

PANELISTS:

GEORGE DAVIDSON
Hughes Hubbard & Reed, LLP
Legal Counsel for Boy Scouts of America

PROFESSOR JONATHAN TURLEY
George Washington University Law School

ERIK S. JAFFE
Law Offices of Erik S. Jaffe

C. JOAN PARKER
Assistant Commission Counsel
Connecticut Commission on Human Rights and Opportunities

HON. WALTER DELLINGER
O'Melveny & Meyers
Former Acting Solicitor General (moderator)

MR. REUTER: Good afternoon. Welcome. My name is Dean Reuter. I am the director of the Federalist Society's practice groups, and it's my pleasure to welcome you here this afternoon to our panel discussion on the Boy Scouts of America and some of the recent events in the State of Connecticut.

Before we get started on that, I do, as a point of business, want to invite your attention to our panel next week, which is across the courtyard here, concerning implementation of the Swank decision. It's a Supreme Court decision concerning the Clean Water Act and the Army Corps of Engineers.

But our panel today on the Boy Scouts is sponsored by our Civil Rights and Free Speech and Election Law practice groups. Because of the Boy Scout Oath, the State of Connecticut has excluded the Boy Scouts of America from its annual employee fundraising campaign. Its basis for such a decision rests on the State's belief that the organization's stance, excluding homosexuals from membership, conflicts with Connecticut's anti-discrimination laws.

The State Employee Charitable Campaign provides an opportunity for state employees to donate to any organization named on the State's contribution list, which includes 900 groups. But for the preceding 30 years or so, until the year 2000, this fundraising campaign was a source of funding for the local Boy Scout councils. Because of the removal of the Boy Scouts from that list, the Boy Scouts have taken the matter to court. This case underscores two different understandings of state and local governments in exclusion of private groups that are asserted by the state to be in violation of certain anti-discrimination laws. The BSA claims that it is not subject to Connecticut's public anti-discrimination laws because it is a private organization. The BSA cites the First Amendment protections of free speech and association to argue its authority to set standards for membership and conduct. It also argued that the state is denying employees their freedom of speech by preventing them from contributing to the BSA through their' charitable giving campaign.

The State, on the other hand, claims that the Boy Scouts maintain standards that violate anti-discrimination laws and prevent the State from including and supporting such an organization. The State also asserts that it has an interest in protecting the civil liberties of the public, and that it does not prevent an employee of the government from contributing to the Boy Scouts on his or her own initiative.

To discuss these issues in greater detail, we have a distinguished panel of speakers. Balance on our panels is one of the hallmarks of the Federalist Society. We always strive for that. We are just a bit light today on the side of the State of Connecticut, on that side of the argument, but not for want of trying. We invited 46 scholars, practitioners, think-tank staffers, and others to help support the side of the argument for the State of Connecticut, but we only got one taker in the end, and we're very happy to have her here. Fortunately, she was involved in this case and can speak authoritatively.

Our moderator for the panel today is former acting Solicitor General Walter Dellinger. We ate lunch together a while ago, and I asked him about his thinking on the Connecticut case because I was interested in recruiting him as a panelist, as a participant. He told me he really couldn't be a panelist because he was undecided on the issue, and that's when I thought he would be a good moderator. He happily agreed. I'm sure he will hold the panelists feet to the fire today -- or to the campfire, as the case may be.

Mr. Dellinger is head of appellate practice and a partner at O'Melveny & Meyers here in Washington, DC, and he is the Douglas B. Mags Professor of Law at Duke University. I already mentioned that he served as acting Solicitor General of the United States, but he also served as Assistant Attorney General and Head of the Office of Legal Counsel. As such, he was the Department's principal legal advisor to the Attorney General and to the President of the United States. He has published in several scholarly journals, including Harvard, Duke, and Yale law journals; also popular literature, in the New York Times, the Washington Post, Newsweek, the New Republic, and the London Times. I could go on at much greater length, but I do want to get to the issues at hand for today, so please join me in welcoming our moderator, Walter Dellinger.

HON. DELLINGER: Good afternoon, and thanks for coming out in somewhat inclement Washington weather, or joining in on the Federalist Society's webcast, a new innovation.

The issues that the panel is going to grapple with today, I think are among the most fascinating in constitutional law. They arise in the aftermath of Boy Scouts v. Dale, which is, as Dean Reuter noted, a case in which a divided court held that New Jersey's application of its public accommodation to anti-discrimination law to the Boy Scouts, holding that the Boy Scouts were required to admit as a leader someone who was not only gay but was an activist and had spoken out in terms of being gay, that the requirement that they, to comply with the anti-discrimination laws of the State of New Jersey, admit such a person to the Scout leadership infringed upon the Boy Scouts' First Amendment right to expressive association. The Boy Scouts were sending a certain message by the way in which they organized themselves, and this forced inclusion by the anti-discrimination laws infringed upon their First Amendment rights.

This follows from Boy Scouts v. Dale because in its aftermath, a number of states and localities around the country have ceased supporting the Boy Scouts in ways that they used to do. They would argue that these cases are different in that they're not forcing the Boy Scouts to adopt any policy on who may be its leaders, who may be its members, but the state is declining to support it so that there's now litigation around the country where local communities have said the Boy Scouts may no longer use the schools for meetings, may no longer use the civic facilities for campgrounds, etc., because of this policy.

The Connecticut issue is one of the most interesting because in Connecticut they have a combined state government employees' charitable fund that works the way many of you are familiar with the Combined Federal Campaign working, where about 900 groups are allowed to list themselves as recipients, and you may choose to send some of your charitable dollars through your payroll deduction to those groups.

For 30 years, the Boy Scouts have been among those listed. But in the aftermath of Boy Scouts v. Dale, the State removed the Boy Scouts from the list of those who could be the objects of charitable donation and did so because of the State's policy that's now being litigated.

Let me just say a word as moderator. I genuinely find these issues of deep conflict because -- and I can go back to Boy Scouts v. Dale. The morning that Boy Scouts v. Dale was argued in the Supreme Court, I was asked by one of the correspondents who covers the court how I thought the court ought to resolve it. I thought for a good long while, and then said, I think they ought to dismiss the writ of certiorari as they were improvidently granted. And I said that actually not casually, but I believe in the application of the anti-discrimination laws, even though they do curb the freedom of those to whom they apply. They curb the freedom of Ollie's Barbeque just as they curb the freedom of groups.

On the other hand, Michael McConnell, now a judge, arguing for the Boy Scouts, made a very forceful argument in that case about d'Toqueville's America. In d'Toqueville's America, he said that what is really to be praised is that in America, there is not just governments and individuals. There is a plethora of private associations. And one of our panelists today, George Davidson, had developed arguments along with Professor McConnell that that's a vital part of America; private associations don't have the constraints of government. So, I can see both sides.

But it did strike me that only New Jersey had undertaken this and that it was a genuine conflict between anti-discrimination laws on the one hand and the right to control one's association on the other. And given that only New Jersey, and then only by judicial decision, and then only without any really intervening session of the New Jersey legislature, had undertaken to treat the Boy Scouts as a place of public accommodation. I thought that the court was unnecessarily opening up issues that it was wiser to let lay fallow for a while. And much of the controversy after Boy Scouts v. Dale, I think, has given some comfort to me that that was the starting point of perhaps a more prudent approach to these cases.

We have a great panel today. We're going to start with George Davidson. George is a partner at Hughes Hubbard. He's a member of the American College of Trial Lawyers and the American Law Institute, and he has been counsel for the Boy Scouts in a number of these cases -- is that right, George? -- including, he is counsel who has argued the Connecticut case.

Our other expert on the case is Joan Parker. Joan has been Assistant Commission Counsel for the Connecticut Commission on Human Rights and Opportunities for about a decade now. She does employment, housing, public accommodations, etc. She is a graduate here, locally, of the Georgetown University Law Center. So, George and Joan will go in that order, and they can really tell us about the Connecticut case that has now been decided by the Second Circuit, and I take it is not over yet, in your view.

And then we have, following the two experts on the case, two really thoughtful scholars, Jonathan Turley, who you know is a nationally recognized legal scholar who's written extensively on everything from con law to legal theory to torts; advises Congress, state governments, and other on constitutional issues and has a constitutional litigation practice.

And, Erik Jaffe, familiar to many of you -- a great record from Columbia; always, I think, a refreshing intellectual who clerked for Judge Ginsberg on the D.C. Circuit and Justice Thomas, and runs his own practice. He is the senior partner of Erik S. Jaffe, P.C. I don't know how he does it. I have about 800 people who work for me that I take credit for, and Erik does briefs that are better and does it all by himself.

That's our panel. And George, both Dean and I gave rough ideas to the case, but I'm sure you have a better sense of it, and I'll let you begin.

MR. DAVIDSON: Thank you, Walter. I just think that we should keep a little history in mind here. Dale and the Connecticut case are really the tip of an iceberg. Over the last 20 years or more, the Boy Scouts have been under relentless legal attack for the sin of teaching virtue to boys and helping them to become responsible young men. There have been more two dozen cases attacking BSA values, and in at least half of them, ironically, part of the attack has come from the ACLU.

Four years ago, we thought things would improve when the Dale case, which was well-described by Walter, was decided by the Supreme Court, holding that Boy Scouts leadership policies were part of its protected expression under the First Amendment. Unfortunately, we now have the Second Circuit in the Wyman case disagreeing. As has been mentioned, employees of the State of Connecticut have had the opportunity for many years to have a payroll deduction-type contribution to any of a whole number of charities, which now number 900, described in this booklet distributed to employees, to which they may contribute.

The Boy Scouts have participated in that campaign for at least 30 years. Nevertheless, despite the fact that the campaign is not funded by the state -- it's funded by the participating charities -- Connecticut decided to exclude the Boy Scouts because it read Connecticut law as prohibiting the state from supporting discrimination. It's important to keep in mind, there was no finding that the Boy Scouts themselves were in any violation of any law at all.

This rationale by the State was a rather peculiar one since the same laws also prohibit the State from discriminating on the grounds of sex, age, race, or religion, and literally scores of the 900 charities in the campaign openly discriminate on one or more of these grounds, such as the Girl Scouts, Catholics for a Free Choice, the NAACP, and various gay and lesbian organizations, such as Lambda and Stonewall. Only the Boy Scouts were excluded.

Nevertheless, on appeal to the Second Circuit, Judge Calabresi upheld the state, reasoning that even after Dale, the State was free to make the Boy Scouts "pay a price" for the exercise of their First Amendment rights. Judge Calabresi's reasoning is likewise peculiar, given three separate lines of Supreme Court authority. First, Judge Calabresi read the freedom of expression cases as permitting him to make a distinction between an absolute prohibition on a particular membership policy and the imposition of some kind of state penalty for having it. That distinction just isn't in the cases. In fact, some of the leading freedom of association cases, NAACP v. Alabama and Healy v. James, are penalty cases. They're not prohibition cases.

Second, the Second Circuit's decision if flatly inconsistent with the viewpoint discrimination cases which have been marching out of the Supreme Court on a regular basis in recent years, such as Rosenberger v. University of Virginia, Lamb's Chapel, Good News, and a case involving the federal employees campaign, Cornelius v. the NAACP Legal Defense Fund.

The third line of authority is the unconstitutional conditions cases. The Wyman case is really a classic unconstitutional conditions case. In order to participate in a generally available government program, the Boy Scouts would be required to sacrifice their constitutional rights.

Why is this an important case? There are a number of reasons. For one thing, there are over 150 government employee charitable campaigns around the country, with over 140,000 charities participating. Second, as Walter mentioned, the Boy Scouts are encountering similar issues around the country. In Berkeley, the Boy Scouts have enjoyed free use, along with other not-for-profits, of berth space in the Berkeley marina. Now the Sea Scouts have now been excluded, even though organizations limited to women and to the handicapped have been able to participate. There's also a case in San Diego involving park land leased by the Boy Scouts, which is operated as a campground and a boating facility for the general community, not just the Boy Scouts.

But the most important consequence is this pay-a-price rationale. If the state is entitled to burden First Amendment rights by requiring charities to pay a price, the impact of that is bounded only by the imagination of public officials hostile to religion or traditional moral values. State universities around the country have pestered campus religious groups seeking recognition and the ordinary student organization benefits because they insist on having leadership policies which are consistent with their traditional religious values.

Can a church group reserve a softball diamond or a picnic area at a park, or are they to pay a price for having limited their clergy to males or having other policies not favored by elected officials? And to get a little more extreme, if an orthodox synagogue catches on fire, does the state have to send a fire engine? This pay-a-price rationale cuts dangerous in-roads to the First Amendment and really emasculated the Dale case.

Having lived with these issues for really close to a quarter of a century now, and understanding what toll the litigation process takes on rights, I'd like to give this little sum-up of the state of First Amendment law in this country. If you're a weirdo fringe loser, you can have all the free speech you want; the ACLU will fall all over itself to defend the American Nazis and the Klan. But woe betide any mainstream American institution that dares to buck the tide of political correctness. The ACLU and its fellow travelers of the thought police will seek to silence its voice through the litigation process.

For those of you who may want to know more about the Wyman case, we have a website that's going live today, and the URL is www.bsalegal.org.

HON. DELLINGER: Thanks. That's a very good introduction, a forceful presentation of George's point of view, and Joan Parker is fortunately also been involved in the case. And Joan, you can tell us what the counter-argument was that the Second Circuit heard.

MS. PARKER: Good afternoon. To fully understand the case, it's helpful not only to understand the history of the Dale decision but the history of Connecticut's gay rights law and how the Connecticut has interpreted that law.

Only about 14 states have laws protecting gays and lesbians from discrimination. That's one of the things that makes this case unique. And as I go a little further, there will be another area that makes it even more unique. The Connecticut General Assembly enacted the gay rights law after hearing much testimony about the discrimination that gays and lesbians have faced in employment and in other areas of their lives, and it was in response to all the concerns that were expressed that the General Assembly wanted to provide protections for gays and lesbians that are already protected based on race, sex, age, disability, and a number of other protected classes in Connecticut.

So, after substantial public hearings that considered the life experiences of gays and lesbians, as well as discussions about who should and would be exempt from the law, the gay rights law was passed. The coverages provided -- the gay rights law, although called the gay rights law, prohibits discrimination based on sexual orientation. Sexual orientation is defined as homosexual, heterosexual, or bisexual. And in fact, the Connecticut Commission on Human Rights and Opportunities has taken sexual orientation discrimination cases by heterosexuals also. So, although called the gay rights law, it protects against discrimination based on sexual orientation, period.

The other part of the gay rights law that makes Connecticut's law unique -- Connecticut is only one of two or three states that has protection for sexual orientation, prohibition against discrimination, is that Connecticut also prohibits the state from furthering discrimination. No state facility may be used to further discrimination based on sexual orientation; no state agency shall be a party to discrimination. There's even an affirmative duty for state agencies to examine their programs to ensure that they don't discriminate based on sexual orientation.

The Connecticut State Supreme Court has interpreted the gay rights law prohibition on state action in the case of the Gay and Lesbian Law Student Association, wherein the military sought to and did recruit on the University of Connecticut Law School campus, and the Gay and Lesbian Law Student Association sued, saying that by allowing the military to recruit, the state was actually furthering discrimination in violation of Connecticut's gay rights law. And the Connecticut State Supreme Court agreed and noted that, even though it was the military that did the bulk of the work in their recruitment, just by making space available and doing very minimal action in coordinating the efforts of the military, that was sufficient to constitute state action in violation of the state statute.

The court said that notwithstanding the military's legal right to discriminate, that does not in fact confer upon the state of Connecticut the right to violate its own statute. So, there we have the first real interpretation of Connecticut's gay rights law.

When the New Jersey Supreme Court issued its decision in the Dale/Boy Scouts matter, the Connecticut Commission on Human Rights and Opportunities had some concerns about the Boy Scouts continued participation in the campaign fund that was earlier discussed. Some years before the campaign committee, the state committee, that oversees the campaign, had actually asked the Commission on Human Rights and Opportunities to determine whether or not the continued participation of the Boy Scouts in the campaign had violated any laws. And for reasons that are unclear to me and predated my involvement in the case and there's nothing in the record to answer the question why, someone or everyone dropped the ball. That was never addressed back then.

It raised its head again when the New Jersey court handed down its decision, saying that the Boy Scouts must allow James Dale to continue to participate in Boy Scouts. So, knowing that it was now clear beyond a reasonable doubt that Boy Scouts policy was discriminatory, the Commission on Human Rights and Opportunities notified the state employee campaign committee of its concern that the continued participation of the Boy Scouts in the campaign may violate the law, the campaign in turn asked the commission to answer a question and issue what is called a declaratory ruling to answer the question whether the Boy Scouts' participation would violate the law.

The long and the short of it was that the Commission ultimately issued three declaratory rulings, but the long and the short of it is that the Commission said that notwithstanding the Boy Scouts' lawful right to discriminate, that doesn't confer upon the State of Connecticut the right to violate its own laws against discrimination, and to continue to include the Boy Scouts in the campaign would cause the State to be a party to discrimination. And based on that, the Committee notified the Boy Scouts that it would be excluded from the campaign. The Boy Scouts, in turn, filed suit to remain in the campaign, and that brings us to where we are today with the Boy Scouts' petition for cert. pending, and our opposition to cert. at the printer, soon to be filed with the court before the end of the week.

What distinguishes the Wyman case from the Dale case is that in Dale, the Boy Scouts is faced with the mandate that it must include or admit an avowed homosexual or gay activist as a member and a leader of Boy Scouts. And the Supreme Court held that that would conflict with the Boy Scouts' First Amendment right to choose what message to send and to who and how to send that message. Here, Connecticut is not mandating that Boy Scouts accept or admit anyone, simply so long as the otherwise lawful discriminatory policy Boy Scouts maintains is in place, that Boy Scouts cannot participate because it would cause the State of Connecticut to be a party to be a party to discrimination. So, therein lies the distinction between those cases.

The issue is whether Connecticut can sanction or assist Boy Scouts in the maintenance or the furtherance of its discriminatory policies. And several cases have held that while private discrimination is lawful in this country that public support of it is not guaranteed, and in fact it is not encouraged.

The Dale court even recognized that the right of expressive association is not absolute. The cases that George mentioned, the Rosenberger and other cases where there were limits imposed on religious practices or religious beliefs, are distinguished because in those cases, the particular exclusions were based on religion or religious beliefs or religious activities. Here, the exclusion of the Boy Scouts is based on the enforcement of Connecticut's non-discrimination clause which is applied, which is neutral on its face and was held on the Second Circuit to have been applied in a reasonable manner.

The existence of other charities in the campaign that provide services to others is not the issue. The issue is employment practices and membership practices that run afoul of the discrimination law. There is nothing in the record, no evidence in the record, that any other participating organization had any similar discriminatory policies or, in fact, did engage in discrimination, and it's the State's position that if presented with that kind of evidence, then the State would take the appropriate action to ensure that no known discriminator is included in the campaign.

The only other point that I would make now, and I'll save the rest of my arguments, is that contrary to the materials I think you received in your packet, Connecticut did not say that the Scout's Oath is discriminatory. What Connecticut is saying is that the Scout's membership policies are discriminatory in their exclusion of homosexual, and that's what prompted their exclusion from the campaign.

HON. DELLINGER: Thank you, Joan. Before we go to our two scholars, Jonathan Turley and Erik Jaffe, let me broaden the discussion a bit to them, and perhaps even up the sides a little bit by posing two additional questions.

It seems that what's difficult about this case and what distinguishes it from Dale is the fact that -- proposition 1 is that the government does not have to fund all the speech that is constitutionally protected. And so, a couple of hypotheticals to keep in mind to sort of change the politics of this a bit. Suppose Connecticut for 30 years has included as one of its 900 listed charities a group called Empower Women, which provides funding for abortion for low-income women, and the Massachusetts legislature passes a statute saying that no governmentally sponsored combined charity fund may include organizations that actually pay for abortions.

Case number two is, for 30 years, the Charlotte Little Theater has been part of the combined governmental campaign. The Little Theater puts on a homo-erotic play which causes public controversy, although it's not constitutionally obscene. It is protected indecent speech, I will stipulate, but nonetheless, it has caused such concern that any further participants in the combined governmental campaign have to assert that they will not use that funding generated through that governmentally sponsored activity to produce any indecent material.

What I want to reflect is the notion that the government's ability to limits its funding is subject to a broader range than the government's ability to absolutely prohibit activities. We will then, of course, have to address the further question of whether in this case we really have government funding or something quite different -- government facilitation of private funding. But I throw those out just as additional broadening for, first, Jonathan, and then Erik.

Jonathan, you may start.

PROFESSOR TURLEY: I'll try to get to those, and to expedite these other comments. I was actually hopeful when I came to this group -- I know many people in this room, many of whom are experts in this field -- because I tossed and turned about this case too much. When I saw Terry Easton, I thought I could be delivered from indecision, and Tony Morrow and Roger Pilon. And you all failed me once again.

I find this one of the most difficult cases I have ever reviewed. And I say that because I was not, like Walter, reluctant to see the Supreme Court deal with Dale. I thought that Dale was a tremendous victory for the liberty interests of this nation. And it finally did the right thing when it came to the right of association, which has always been something of a sleeper. It always was a right that was acknowledged but always seemed to lose in struggles with other rights.

So, I come to this as a big supporter of Dale. And I should express I've got two points of personal bias that I guess I should reveal. One is that I was a Webelo. I never made it to the Boy Scouts, which I've always held a certain bitterness toward the Boy Scouts for that reason. But the Webelos are a much abused and seldom considered group.

The second thing is, I actually don't agree with the Boy Scouts' policy. Just as a parent of three boys, I don't agree with it. But that, of course, doesn't matter. What matters is whether the Boy Scouts have a right to protect that policy, a right to the rules of its own association. I believe that it does.

What happened with Dale is that we suddenly had this interesting gravitational neutrality that, once the court ramped up the right of association, as it did in Dale, for the first time, we had rights of rough equality going into a fight like the current one. And that's the reason that people like me seem to be frozen in amber, sort of caught between these poles with a terrible decision because part of me -- as Roger knows, I'm a big advocate of Federalism. I'm sort of a weird animal, someone with liberal tendencies who likes Federalism, which puts me in a group of one. And I believe that states should have a right to experiment, should have a right to enforce their anti-discrimination laws with regard to sexual orientation. And then, of course you have the other pole, which is the First Amendment.

Ultimately, the way I come out on this, quite frankly, is that this is one of those terrible points in our republic in which we have to make a balancing choice. It's the toughest thing that the framers left us. They knew the problems they were giving us when they gave us a whole bunch of rights, the distance between which would be occupied by thousands of conflicts.

But when you read Calabresi's decision, there's much of it that leaves me unconvinced. One of those distinctions, for example, and I'm not going to get into the cases that Dale was -- I believe that the Supreme Court has fouled up the area of speech and association, with the one exception of Dale, for many decades, and it'll take many decades more to figure it all out.

But the problem is that what Calabresi said ultimately in the Second Circuit was that there's a distinction between groups that discriminate in the employment area, such as Boy Scouts, and groups that discriminate in services. This was considered to be a redeeming factor for Calabresi, that when the Boy Scouts were citing these 900 other organizations, what the court said is, first of all, the record's not there for us to make a decision, but then they also said, and besides, we're not saying that you can't discriminate in services; we're saying that you cannot discriminate in employment. Those are different things. I don't understand why that's true. I don't understand why Connecticut could have one of its 900 organizations -- it could be any 501(c)(3) organization -- that might include something like the Nation of Islam. And let's say the Nation of Islam only gives drug treatment to Moslems. And I object to Connecticut. I say I'm Catholic and they won't give me drug treatment.

It seems to me that we're left in the same position -- whether it's discrimination in services or discrimination in employment, the state is still to some degree responsible as a facilitator of charities for discriminatory results. So, the question is, does that mean that the state should just not assist in any charities? Then maybe the answer is that the state should get out of this business. That's one possibility.

But these types of programs actually do make us better as a society. Connecticut should be thanked for these types of efforts because what these charities do is they answer that robust debate where we fight about these rules, and God knows we got a lot of fights after Dale that are still here; we've got a lot of fights that have to be resolved.

It's good for a state to tell people you can give money to your organizations; you can play a role in that fight. I fact, you're expected to fight. But that also means that if you're going to have 900 organizations, if you're going to let any 501(c)(3) to be listed, then you're going to have to be a faithful administrator and not start picking and choosing because the ACLU might in that group; the Nation of Islam might be in that group. Any one of those organizations are going to have some type of discriminatory aspect.

And so, I think the way I come out on this, quite frankly, is that this is one of those tough choices you have to make, and there are some times when the government has to be forced to stand aside. Here, we are helped by the fact that the government doesn't fund this and the role of the government is relatively modest, that even though the state law says they can't further discrimination or be a party to discrimination, you've really stretched those terms to view this as furthering discrimination, particularly when the money is going to go to organizations that are diametrically opposed to each other.

I think we need a bright-line rule. That's why I like Dale. Although the Second Circuit whisked to the wind about the meaning of Dale by narrowing the broad meaning, I happen to agree with the Boy Scouts that its meaning is broad. When I read Dale, it seems to me that it was a roaring endorsement of the Boy Scout's associational rights and I think it's the correct one. But putting that aside, we need a bright-line rule in this area, and that bright-line rule, I think, favors the Boy Scouts in this dispute.

I also think, though, that we need a bright-line in a lot of different ways because this is a small problem in a larger area. For example, what I would have suggested as a hypothetical, which is not as tailored to this as yours, Walter, is that right now, the Pentagon has an office that essentially subsidizes certain films, and both Walter and I have held forth on this subject at various points. The Pentagon office basically tells film makers, if you send us your script and we like it, we'll give you things like aircraft carriers, Special Forces fire some rounds at the beaches. You know, we'll even supply you a couple of generals to go in your movie so you can add a sense of reality. And any movie that they consider to be negative in terms of the Pentagon is denied that. So the effect is, they don't prohibit people but they simply facilitate those that they like. I consider that to be extremely problematic. And so, what the Pentagon dislikes in a film would take your breath away -- you now, what they consider to be anti-military is a rather curious statement. With the exception of John Wayne and the Green Berets, virtually anything is suspect.

It seems to me that we need to have a bright-line rule that doesn't just deal with Boy Scouts but deals with all of these questions of whether the governments, federal or state, will be faithful stewards when it comes to these types of groups and these types of programs and these types of projects.

The reason I started that long way of getting over to Walter's question is that I think it answers the question that, in my view, the only way we can come out of this with any sense of wholeness, in my view, is to say that both Empower Women and the Charlotte Theater are allowed to get the funding, that we're not going to open up the door to theater and see what's being performed. If they're 501(c)(3), they're allowed to be on Connecticut's list; they are funded. What that means, however, is that if Connecticut loses, you're going to have the KKK and the Nazi Party or the Americans for Nazi Justice or whatever are going to come in and be added to the list. That is part of the trade we make.

When it comes to journalists like Tony, we constantly defend his ability to publish because we know that what he does, whether it's good stuff or bad stuff -- Tony does good stuff -- but whether it's good or bad, we believe that a robust media debate makes us a better country. I think we may just have to adopt the same type of predisposition toward associational rights. It's not that it's good; it's not that the groups are admirable. But, it makes us a better country to have as many of them as possible. Quite frankly, it's better to have us all fighting with each other and we can finally get things done, because that's what an argument's about. When the government starts to quiet members of that argument and say that they don't have a seat at the table, I think that you get into areas that run against our constitutional grain.

Thank you.

HON. DELLINGER: Thank you, Jonathan. Erik Jaffe. While you're walking to the podium, I'll just say that I think as a policy matter, it's easy in this case, if I were a Connecticut, because you should let a thousand flowers bloom. It's private choice. And that's why I'm not worried about the Klan or whoever because every state employee should decide who he or she would like to direct the money to. So, in that sense, as a policy matter, it's relatively easier to me. And that's why I'd like to push this to consider all the other cases as well, where the Boy Scouts are receiving more government subvention than this mere facilitation, where the government is choosing to give the Boy Scouts some special access to governmental premises, as against an anti-discrimination law. It's going to be more often, I think, the cases that George is going to be litigating.

MR. JAFFE: You know, I actually think that Jonathan's speech was an excellent lead-in to my half-hour. I think there is a bigger principle here, the principle of neutrality. The question is how does that translate from, you may not impose content of viewpoint bias restrictions to being how does one deal with a kazillion things the government does when it props things up. Ordinarily, we don't think about it that much, but it's coming up more and more often. It's coming up in the context of government speech, whether or not the government may take certain viewpoints, support those viewpoints either directly or indirectly, to the exclusion of contrary viewpoints. There's the military example; there are dozens of other examples we have in the agricultural marketing area, for example.

Vouchers was a perfect example of that. In vouchers, the question is may the government indirectly support parochial schools. The answer we got was, it's not an establishment problem because of private choice, like Walter just said. I think this principle was throughout the grain of the First Amendment, whether it was religion, whether it was speech, and it's a principle that applies whether government conduct is affirmative or negative; whether it's endorsing something or restricting; whether it's paying something or refusing to pay for something. It's the same point that permeates, I think, all First Amendment law, and it should permeate all First Amendment. That's very much the point: get the government out of the fight. The government is merely a result of the fight; it should not be a participant of the fight.

So, it seems to me that some of these questions -- I don't view this case as being difficult at all. The answer is Connecticut's wrong; they can't discriminate; their discrimination is plainly based on expressive association. It's not based on non-expressive association. It's based on the very fact that the association has expressive content.

If Connecticut is right, then Dale is wrong. The two simply may not coexist because if Connecticut may burden the Boy Scouts by depriving them of this benefit or the next benefit, why can't they just fine them? This burden is materially indistinguishable, whether the burden is, we will not give you what we are giving everyone else, or, we will take away something that you started out with. We can pass a tax that says, we're going to tax everyone 85 percent of their income unless they comply with all these things that we think are wonderful. And so, we'll give tax exemptions to most of you people, but not to you few folks. The notion that that is somehow different than a massive fine buggers the imagination. But 'not to use a bad phrase in this context.

Anyway, you know, these distinctions essentially between support and burden, between help and hurt, they're just trivia. They're utter trivia. They have nothing to do with the logic of it, which says, the government needs to be neutral on -- at least in the speech context. We'll get to where the government needs to be neutral as to other forms of conduct that are not implicated in speech.

But what hangs people up the most in this case is that this seems like it's more than speech. It's association. It's employment. And that's really what hangs Connecticut up, what hangs most people up who have difficulty with this. The short answer is that association in general, of course, is not protected. We do not have the right to associate or not associate with whoever you want. It is expressive association that is protection.

What has been decided in Dale, what is essential here, is that this is not your run of the mill economic association, the Jaycees, or what have you. This is expressive association, where the association is inextricably intertwined with the association's ability to get its message out, to force the organization to associate with someone whose very existence denies their message is absurd. And so, what Dale decided was that the associational impacts, the expressive association, outweigh the incidental conduct aspect of association in general, and I think that's absolutely right. It couldn't be otherwise. Oh, you know, ban flags. Maybe some of you in this audience think that's a good idea. I, of course, don't.

HON. DELLINGER: Erik, can I pose to you a question?

MR. JAFFE: Yes.

HON. DELLINGER: Just a thought. The notion that -- here's what I find difficult about the part of Dale that you just endorsed. That is the idea that there's an expressive association because there's a group. It seems to me, before this audience, the hard question is why does Ollie's Barbeque because they're a commercial enterprise get less freedom than the Boy Scouts?

Now, I understand where you may go with that, or Richard Epstein, but you know, Ollie would say that all his life, he wanted to create a certain kind of enterprise with a certain kind of ambience. And yet, we say to him our policy of anti-discrimination overrides your choice. And you referred to those as mere economic arrangements, but I'm wondering if a true conservative viewpoint could distinguish between the application of a sort of public (inaudible) the commercial enterprises, where it's allowed, and not to these other kinds of groups, where there's more of an associational protection. Whether one wants to draw that distinction between commercial and non-commercial. I'm just wondering whether you would address that --

MR. JAFFE: Yes, sure.

HON. DELLINGER: That's what troubles me. I'm comfortable with the anti-discrimination law application to commercial enterprise; Roger Pilon is not. I know which way you would go, but that's your bet.

MR. JAFFE: Your guess is right that my gut goes with these laws ought not exist. There should be private discrimination. We discriminate all the time. If I want to have a restaurant that says "No Nazis Allowed," that should be fine. If Nazis want to have a restaurant that says "No Jews Allowed," fine. Fine with me. That's cool. I'm not going there anyway. That's fine. But I think there's a difference.

At the end of the day, the difference to me is somewhat formal, which is speech. Speech. Ollie's Barbeque was not an expressive association. If Ollie's Barbeque was instead Ollie's Supper Club for White Folks and white supremacists are great and we're going to meet and talk about how to have white supremacy, Ollie's is right there. The KKK can have a cafeteria in their own club house. The NAACP or the Nation of Islam can have a cafeteria in their club house and they can keep out folks of the other colors. I think that's perfectly fine.

The only question for me is the First Amendment is different. Non-speech conduct is more easily regulated and hence more easily prohibited. The First Amendment says speech conduct or expressive conduct has to meet a higher standard. That would be my story as to why one might not have to throw out 50 years of law. It's simple. Not that that's stopped me before. Simple.

Two real quick things, then I'll let us get to the Q&A, is the unconstitutional conditions notion -- I think Connecticut is going on this old unconstitutional conditions, rights/privileges distinctions fight. They're saying, this is not a right. We're not saying you can't associate. We're saying you can't have this little privilege of getting to join the club and asking people for money, much like you can't stand up in the park or podium and talk to people -- you know, little privileges like that, being able to speak in a forum.

I think the rights/privilege distinction makes no sense. I think it's been rejected in many, many cases, and so the notion that they're only taking away a privilege as opposed to burdening a right I think is incoherent. There certainly are periodic outcroppings of this distinction in the Supreme Court and other court case law. That's unfortunate, but it won't be the first time or the last time that the Supreme Court has said things that are inconsistent. We should look to the principle rather than to occasional glitches.

The last thing is this notion of neutrality, which I first talked about, just as sort of talked about already -- it's important that the government stay neutral on matters of discretion and persuasion because if the government does not stay neutral, what ends up happening is they end up driving politics themselves. And that is exactly what the First Amendment is designed to stop. When the government gets to put a thumb on the scale and tell groups that favor one side or another that, do what the government wants them to do in terms of expression and speech, you know, they end up entrenching their own views, which is exactly what we hope the First Amendment will stop from happening. The entrenchment of the existing powers to represent their views. I think this is a good example.

I will close by saying this case is not about virtue. I agree with Jonathan that this case has absolutely nothing to do with whether you agree or disagree with Boy Scouts' policy, which has many, many, many problems. Whether you agree or disagree about which are the weirdo losers and who are the moral high ground folks, you know, this is not about that and no one should take the argument on either side that it is.

I disagree with George, in fact, about -- I mean, I understand why he's doing it, about playing the moral virtue trump card. I think several times teaching virtue is teaching virtue. One might think this is teaching vice. One might think that. But these are things for private people to decide, whether they think the BSA is teaching virtue or vice. It's not something for government to decide, whether the teachings are virtuous or -- what is the adjective for "vice" -- venal.

That's -- this is about speech. This is about neutrality. This is about having a fair fight on social issues. It's not about who's right.

PANELIST: Would you get rid of Bob Jones?

MR. JAFFE: Yes. I talked to Roger about it, but that would have to go if we proceed down that road.

HON. DELLINGER: Given that the panel is sort of balanced three against one, let me say I should have stated the question submitted this way: Should federal judges force a sovereign state to use taxpayer money to fund an activity it finds abhorrent? I think that is not an inaccurate characterization as a way that would put the question most appealing.

Let me go right -- everybody on the panel has got things to say. We've got such an interesting audience. I'm going to go right to the audience because I think people can work their thoughts in. And I'll try to save -- start with Mr. Pilon to hear what his libertarian position is.

MR. PILON: The distinction that you're drawing, of course, is really the most fundamental point of the debate, and that is private versus public sector and is a private organization. Even when you're given the toughest cases, namely privately owned foundations, you can go back to the common law, the invitation to treat theory. But strictly speaking, if they put up a sign "Open to Public Except For..." that should save them because it's a private organization.

Now, once you get rid of that part of the 1964 Civil Right Act that extinguished the distinction between public and private, you're on a slippery slope. 'And we're paying the price for that today, and we've extinguished the bright line. We've got the Jaycee decision going one way and we've got the Boy Scouts decision going the other way. And there's no reason why. They're both, they're on all fours, the same theory.

HON. DELLINGER: I just want to say for the record that I disagree with your position about Title II, and you're general principle.

MR. PILON: (inaudible)

(Simultaneous conversation.)

HON. DELLINGER: Other questions and comments. The mic is ready. I know there are -- yes, ma'am.

AUDIENCE PARTICIPANT: Hi. This is for Ms. Parker. I wish we had a list of the 900 groups. That would really be helpful. But, are you suggesting -- oh, okay. Are you suggesting that Lambda, Stonewall, NAACP, those guys don't discriminate at all? It just -- I mean, I'd like to know how many straight people work for Lambda. I mean, it -- I -- that begs belief. So you're saying that Boy Scouts is the only one that discriminates in terms of employment. Is that what you're saying? Am I reading it right?

MS. PARKER: There's no evidence in the record that any other participant has discriminatory policies or actually discriminates. And when we were in the district court, there was a lot of discovery, depositions that were taken.

And some of the witnesses who were deposed were associated with some of what you would probably characterize as gay groups and were asked questions about, you know, what about straight people. Or an organization -- a women's organization, what about men? And the answer was that there is no exclusion in membership to straight people. And in the women's organizations, there was a question directed to someone in the Stonewall Foundation -- the distinction was made, that although straight people may be members of the Stonewall Foundation, people who hold a viewpoint that opposes homosexuality would not be allowed to be allowed to express Stonewall Foundation's message, would not be allowed to represent in a public forum Stonewall's message because that person's message conflicted.

So, the distinction is between -- in that case is between the expression versus the membership or employment policies. And we just don't have, and there's nothing in the record that shows that any other participant is a known discriminator. The court found that the distinction of targeting services -- found that that was a clear distinction between clear membership and employment policies, and there was certainly no record that any targeted services were exclusive.

HON. DELLINGER: Joan, I want to follow up. The court does say -- the Second Circuit opinion does say that the Boy Scouts of America failed to point to the slightest indication that these groups discriminate in their membership or employment policies. There's nothing in the record.

Do you think if this opinion of the Second Circuit is upheld, do you all anticipate in Connecticut that people will want to try to put on evidence that various of the 900 groups whose policies whose policies they differ with do, in fact, you know, discriminate in their hiring, etc.? I mean, is there any concern that you're opening up a spectrum whereas, you know, ideological opponents of any of the 900 groups will try to show that they have a pattern of practice of hiring only those who have affinity with the group? Is that what's going to follow from a victory this case? Does that concern you at all?

MS. PARKER: I guess the short answer to the very first question you asked is no. But the broader answer to the broader question is that since this case has been going on -- I use the term "case" loosely because it arose, as I mentioned earlier, as the declaratory ruling process before in the litigation ultimately grew out of it. So that's been going on since at least 2000; maybe 1999. And there has not been this groundswell of concern about any of the other participants. What we'll say is what state officials consistently said in the discovery process. If presented with evidence of discrimination, then the state will investigate to determine that no known discriminator is allowed to participate.

HON. DELLINGER: It seems the question is, you're taking on a considerable burden. Instead of just listing everybody that's 501(c)(3) to start down the road of scrutinizing organizations just to see who gets listed so people can conveniently do a payroll deduction, rather than contributing directly. That is, the process of governmental scrutiny is in the service of a pretty small objective of limiting payroll deduction, basically, and making people write out their own checks.

Yes, Jonathan.

PROFESSOR TURLEY: One follow-up. I suppose in some ways I'm in support of and not in support of Joan. I actually think it is quite conceivable that in some of the gay organizations, you have straight people working in those organizations.

But I think this is part of the problem with the Second Circuit decision. That is, the Second Circuit put this huge amount of emphasis on employment discrimination and distinguishes it from services, where I think that distinction -- I'm not too sure why that has any resonance, why it's so significant for constitutional purpose as employment versus services. It's for that reason they help it in the sense that they say that they're not willing to do what George asked them to do. George on his side, take a look at this. You can just read these descriptions and you can take judicial notice that they're discriminatory. That would have worked if they hadn't made this division between employment and services. If you read this and the question is are they discriminatory in what they do -- that is, the communities that they serve -- I think you could take judicial notice from this list that that's the case. But by distinguishing employment and service, it knocks out a judicial notice argument from the listing of the case. It requires a lot more discovery.

MR. DAVIDSON: Just to be clear, the state never made the distinction to which you refer, that was purely a creation of Judge Calabresi.

MR. JAFFE: Although, the trial court mentioned the distinction, as well.

MR. DAVIDSON: But again, there's nothing in Connecticut law that makes that distinction. The state insisted any that any ground of discrimination would be investigated if they had "evidence." But just because it says in your own book, Girl Scouts are for girls 5 to 17 is not evidence that they discriminate against boys.

HON. DELLINGER: There's a question in the corner. It was hard to see, yes.

AUDIENCE PARTICIPANT: (inaudible) in that it involves the collection of money, and the court has made a distinction between money and speech, at least in a variety of contexts --

PANELIST: You mean like non-public forum argument?

AUDIENCE PARTICIPANT: Well, the election context certainly involves control of money.

HON. DELLINGER: Let me just say, I think in this case that the money-speech distinction doesn't come into play because it's not money that's being regulated. It's money that's being withheld in order to punish non-money speech. Does everybody agree with that? That's why I think the --

AUDIENCE PARTICIPANT: But it is the contributor's money -- that is, the ability to contribute through this particular deal.

HON. DELLINGER: Are there any comments on that? I think, again, it's important that -- practically, for the Boy Scouts that must be an enormous way of raising money for any charity. To be excluded from the combined campaign is probably quite substantial. From the point of the view of the contributor, you simply have to write your own check rather than do payroll deduction, I think is the way turns out.

Yes.

AUDIENCE PARTICIPANT: Someone asked earlier if there was any evidence that some of the other groups were discriminatory, and my question is, isn't that test essentially almost unmeetable because -- my question is, is not the test as to whether or not the other 900 groups are discriminatory, or if there's any evidence of it, isn't that an almost impossible test to meet because imagine if a devout orthodox Catholic wanted to be employed by Catholics for a Free Choice.

Imagine if a straight person who believes that public sexual activity was sinful wanted to go work for Lambda. It's almost ridiculous, so these groups don't get the chance to discriminate in the way that we believe that they would because no person who held those views would seek to work in those places. However, you have groups like the Boy Scouts who have this message that homosexual activity is immoral, and yet you have people who believe the contrary seeking employment with the Boy Scouts, and that creates a unique test that's not really -- I mean, there's never been a case -- that's never able to be tested. I mean, I'm a devout practicing Catholic and I would never seek employment with Catholics for a Free Choice, and so they'll never get the chance to discriminate against me. But I think we know that that's what would happen, that I would never be employed by Catholics for a Free Choice.

MR. DAVIDSON: There was a post-Dale employment case the Boy Scouts litigated in Chicago, and the court, relying on Dale, ruled in favor of Boy Scouts with respect to its professional employment. And so, it's interesting that Connecticut never found that the Boy Scouts engaged in illegal employment discrimination. This is solely an issue of whether the state is violating its own laws by keeping the Boy Scouts in the campaign.

HON. DELLINGER: Erik.

MR. JAFFE: I think that hypothetical doesn't work. There are actually quite a few cases where folks who are conservative, right wing, whatever you want to call those viewpoints, do actively try to get into groups that they disagree with. Sometimes they're doing it as a test case. Sometimes they're doing it to make mischief, much like I suspect many gays and atheists are doing to make mischief with Boy Scouts.

There are plenty of opportunities to test the neutrality of Connecticut's rules. I suspect that's what will happen if Connecticut wins this, is that folks on the right will test it. They'll apply for employment at Lambda, and they'll wear a big cross that says "Homosexuality is a Sin" or "Leviticus" or whatever. You know, whatever -- they'll do that. And we'll see if Connecticut is actually being principled or not. And they may well be principled if they apply their rules neutrally. But I don't think it's an impossible test. At the end of the day, I think we shouldn't be focusing on that at all. I think it's irrelevant. Let's take them at their word that they're going to do precisely what they say they're going to do. I think it's appalling. I think it's wrong, the notion that the government can divorce itself from you in all conceivable ways because its near proximity to someone it disagrees with would constitute endorsement, would constitute facilitation or furtherance of that which you do, is very troubling in an age when the government's everywhere. And so, if they can deprive you of interaction with the government because it doesn't like you on the pretext of only regulating its own behavior, well that's quite a bit these days.

AUDIENCE PARTICIPANT: This is what I was searching with Roger and Carrie for, it's not meant necessarily in this case as we were trying to work through all the other cases -- that one can take this step, with some sense of confidence, perhaps. But the question is where the next step goes. That's the tough part, is you're trying to work through the direction of this case and Connecticut loses, and you inevitably run smack-dab into about a dozen constitutional cases that seem to go the other way, where the Supreme Court is allowing the government in these Finley situations, and also in Bob Jones' situation, where the government is in fact doing this type of thing. And so, in that sense what makes this case so exciting -- it's sort of the Chinese curse of living in interesting times -- is that you really could be the cutting edge of an extraordinary wedge.

I think it would be a good thing to examine these cases. I really think the Supreme Court is mad in how it has created these cases and these rules, and you're going to be content-neutral. With a discriminatory organization, is that possible? I mean, if you're prohibiting a discriminatory organization, you're obviously not being content-neutral; you're removing the organization because of what they believe. And it's that type of artificiality that maybe we will have to address if Connecticut loses here.

HON. DELLINGER: Well, isn't that part of the notion that the growth of the expanse of government since 1787 has made this issue so much more difficult? That is, it was a plausible position to say in 1791 that government should have nothing to do with religion because the government is this big. When the government is this big, there's no room left for religion, if that is the case, so that that is -- and I think that's --

PANELIST: I think that's an implicit equal protection argument.

HON. DELLINGER: Well, I've always thought that Rosenberger was an easy case; Good News is a good case. Of course, you can't fund and discriminate against religious speech and carve that out. That is easy.

Here's the hard question that I will give to the panel. You can take the position that here, the government simply ought to be neutral, and here, neutrality is the basis. You can say, everybody gets into this book if you're a charitable organization and you're not stealing money, right? And then people can contribute to whoever they want to contribute to. But there are areas where the government is not being neutral because the government is being selective, just like the National Endowment for the Arts, where some conservatives want to say don't fund that which is indecent, and when the NEA responds by saying -- or the arts community says, that infringes our First Amendment rights, my point is that the NEA itself discriminates and censors in the processes of evaluating grant applications all the time. And what do you do with that intractable issue?

I do think that Roger Pilon, for those of you who think they should abolish it -- and I think that is actually not a trivial position. My argument to the NEA when I had to represent the United States and why they felt we had to continue to defend a rule they didn't like is that any argument that I thought it was unconstitutional, for Congress to say take decency into account when doing the grants was an argument that ultimately meant that the NEA was unconstitutional, that they obviously engaged in content and viewpoint evaluation all of the time in the process of awarding grants, which is deeply problematic. And I think all of these wonderful institutions like NPR are problematic for that very reason.

Other comments? Yes.

AUDIENCE PARTICIPANT: (inaudible).

HON. DELLINGER: The mic is coming, or I'll repeat.

AUDIENCE PARTICIPANT: The 501(c)(3) decision, which is the basis on which many of these campaigns select organizations, in and of itself has that same problem. But add that to your question. Is the government already making the decision, which organizations deserve . . . .

HON. DELLINGER: Right. And who has looked at 501(c)(3)? That is, when the government is deciding whether you're advancing the public good, is this something that the government should be involved in? Are there problem areas under the government deciding what is truly charitable in the public interest or not?

MR. JAFFE: It seems to me that there's a difference in forum law between content discrimination and viewpoint discrimination, and I think ultimately can work also in the context of the 501(c)(3) designation. We can say we want someone to help feed the poor because there are people starving and that's content. We don't care if you're going to feed them and preach Islam; we don't care if you're going to feed them and preach Christianity. Just feed them. And that would be okay, that kind of advance of the public good criteria that was not expression based, but rather conduct-based in a pure conduct way. That's perfectly fine. That's what we do all the time. We pay for poor people to eat. We send food aid abroad. What have you.

It's when the criteria for advancing the public good merges with expression that you have a problem. So, if the FCC's very existence is problematic. The investigation of the Super Bowl is going to be problematic because I think at the end of the day, these are not content problems; they're viewpoint problems, or they're so closely merged that they reflect viewpoint problems. They're exactly what Scalia explained is the danger of content problem; they're a mask for a particular viewpoint. So, that's the short answer. That's how we should distinguish.

That's how we could solve the NEA, by the way. If we want to support painting, 'you're a painter, you're in.

HON. DELLINGER: Yes. Further comments on the narrow or broader topic? Yes, there's a question.

AUDIENCE PARTICIPANT: It seems to me there are a number of situations where neutrality, the principle of neutrality -- the problem that they've forgotten that they're promoting a certain ideal of citizenship. And the example off the top of my head is education. Obviously, there the government can't be entirely neutral, it has to set a certain ideal, certain principle. If they can do that in that context, why can't they also do that in other contexts, like this?

HON. DELLINGER: Yes. Why can't the government be expressing the public good, if it can fund positive views of the military through movies and not negative views, which I take it has so far gone unchallenged? Why can't they say we're going to facilitate the funding of organizations that express an inclusive attitude toward orientation, and we're choosing as a government affirmative policy not to foster the expression of contrary views? How is this different? Who wants to take that on? Jonathan, I'm going to make you go first.

PROFESSOR TURLEY: No, please, no. I truly have to noodle on that, I was still working on the 501(c)(3) issue. No, I . . . .

HON. DELLINGER: All right. Erik.

MR. JAFFE: The short answer is, one, the government shouldn't be running schools; two, they should be giving people vouchers so that private choice, at the end of the day, makes those viewpoint-based decisions about what the school's going to teach or not teach; and three, my content based distinction in the 501(c)(3) context solves most of our standards problems. Reading, writing, arithmetic -- you have to be able to do the math, you have to be able to read. You don't really care what the book says; as long as you can get from page one to page ten, we're very happy. That's a content problem, not a viewpoint problem. And so, the government, to the extent that it wants to give out vouchers, but made sure it gave it to people who actually taught the things that we care about, could do it that way.

If the government wants to give money only to people who teach a particular viewpoint, a particular value, that's a problem because ask yourself, why then couldn't the government say we will give money to people who teach that the Republicans are the greatest things since sliced bread, and we will only give it to them because we think that's best for the country. We know all those Democrats disagree but we have the majority right now, so we're going to do that. And there's no way to distinguish that from what you're suggesting, what you think makes a good citizen.

HON. DELLINGER: Terry Eastland, I think, has a question.

AUDIENCE PARTICIPANT: Notwithstanding Erik's distinction between speech and conduct, which I find very attractive, I want to pose to Jonathan a question. I think the last thing we have a probe of this discussion, Jon is the federalism issue. States traditionally have pursued virtue, if you will, in various ways. I was just wondering if you would introduce into the First Amendment any distinctions between what states may do and what the federal government may do.

PROFESSOR TURLEY: You know, I actually -- I tend to get pulled pretty heavily toward state rights, but no, I don't think I would have an exception. It's still a form of government that I would keep out of that type of advocacy and the type of discrimination that comes from it. I think because inevitably there will be lines drawn, and I think it's dangerous for the government to draw those lines.

I think the framers were concerned about government. It's true that they never imagined the federal government we have now, but it was government they were afraid of. And rightly so in terms of speech.

I actually think that the vouchers issue -- I've always thought that the Supreme Court vouchers case was also a leading edge of a wedge because, there, you have a sort of variation of this theme. You give vouchers. And I'm waiting for the Nation of Islam school to get the vouchers.

And in order to accredit the schools, you have state employees go and sit at the school. What if they teach grammar by having them write out over and over again, non-members are subhuman, and, you know, what if it's a school that believes women are chattel and everything is taught in that sense? Does the state then certify that they're learning their grammar while they get their full diet of hate? Or do we certify that it's a functioning school? It seems to me that the vouchers are inevitably to lead us to that direction, where we're going to have to play some -- I mean, we talk a good game where vouchers are neutral, but the vouchers are neutral; it's the certification later in the voucher program that we're going to have neutrality problems with.

HON. DELLINGER: It strikes me -- in the last couple of comments from our panel, let me say it does strike me throughout a number of these issues is that one of the difficulties we've had is that some of the precedents or the model case, arise from the area of racial discrimination, and that has colored our viewpoint, and others would disagree, that these numbers ought to be applied right across the board. That Southern racial apartheid was such a massive wrong that it required collective action to bring an end to it.

But the argument, for example, if you put the question this way, should the IRS be in charge of deciding what's a positive social good and what's not a positive social good in deciding who does and doesn't get some tax exemptions? They know the IRS shouldn't be deciding that kind of -- it's not the kind of judgment that should be entrusted to IRS officials in deciding who qualifies and who doesn't. It seems to me that that came up in the one case, Bob Jones, where I would say there's such a societal commitment here through a series of constitutional amendments that we don't have to worry about this particular IRS judgment, so that the general principle is more troubled. So, I do think that's part of our difficulties in this area for many of us.

I think in the few minutes remaining, I want to go back to where we began with the Wyman case and give each of those who are involved, George and Joan -- George, you started first. I'll let Joan go, and then George, you just -- you have a closing thought on the Wyman case.

MS. PARKER: I think the distinction to make here that seems to get lost because of the free speech component, which obviously is now part of the case, by saying, why are you picking on the Boy Scouts? Connecticut is not picking on the Boy Scouts. It's just that we made a known discriminator -- it could be Boy Scouts; it could be any protected class that Connecticut's law covers -- to the state that the private organization, their rights to private discrimination, when the state gets involved, the state cannot be a party to that, and certainly not in Connecticut where there are specific laws against it.

The U.S. Supreme Court indicates that it's Dale that has -- said it better than I could in the Hallmark case. Private biases may be outside the reach of the law, but the law cannot directly or indirectly give them effect.

HON. DELLINGER: George, I don't know whether "friendly," "trustworthy," "kind," I'm not sure "concise" is among them, but you'll have the closing for a couple of minutes.

MR. DAVIDSON: If you had the chance to flip through this book, you could never put any credence in the State of Connecticut's position. Joan is a wonderful and 'courteous adversary but has an indefensible position to defend. There are hundreds of blatant discriminators in this book.

But I really want to invite the group's attention to the following group, which was funded. One of the amici against us, the Connecticut affiliate of the ACLU, says this about itself in the book. "The Connecticut Civil Liberties Union Foundation -- promotes and defends the rights of the United States Constitution, Bill of Rights, and Connecticut Constitution, in state and federal court, and provides public education." Now, there's a Connecticut law that says if you lie about what you're going to do with the money you're raising, you can go to jail. And I'll leave it to the group as to whether they're in trouble on that.

HON. DELLINGER: I think from both the standpoint of our advocates and our scholars, we had a wonderful panel. Let's thank them.

(Applause.)