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Abstract

Since the Civil Rights Act of 1964, the federal government has played a significant role in reducing invidious discrimination against individuals on the basis of race, religion, color, and national origin. In the wake of even broader state laws against discrimination lie many private organizations treading to stay afloat in what has become a tumultuous sea of clashing constitutional rights. These private organizations justify discriminatory membership policies on the grounds they engage in expressive association protected by the First Amendment, while individuals denied membership to these organizations claim equal protection of the law under the Fourteenth Amendment and under state public accommodation laws. Courts at all levels have struggled to establish when a group is constitutionally permitted to discriminate in contravention of state public accommodation laws. This Note, in Part II, provides a background of Supreme Court cases dealing specifically with the conflict between freedom of expressive association and state public accommodation laws. Part III reviews the procedural posture of Boy Scouts of America v. Dale, identifying the central issues and decisions of the courts below. Part IV analyzes the Supreme Court majority's standard and contrasts it with the dissent's heightened standard, concluding that both sides deviate from precedent in reaching their respective conclusions. While the majority's standard provides too much protection to groups at the expense of equality, the dissent's standard provides far too little protection to groups who engage in purely expressive association. Finally, this Note proposes a standard that reconciles these competing standards.

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