Meet the Left-Wing Health Group Citing the Boy Scouts of America To Justify Excluding Whites From a Prestigious Fellowship 

In 1990, the Boy Scouts of America fired James Dale, a gay rights activist and assistant scoutmaster, after he came out out of the closet, citing the group’s longstanding opposition to homosexuality. Dale sued the Scouts under New Jersey’s civil rights law, which banned discrimination based on sexual orientation. But when the Supreme Court heard the case, Boy Scouts of America v. Dale, in 2000, it ruled that the Scouts had a First Amendment right to discriminate.

In a 5-4 opinion that has never been overturned, Chief Justice William Rehnquist drew a link between exclusion and free expression. The Scouts had a viewpoint—homosexual conduct is wrong—that they were trying to impart to their members, he said; an openly gay scoutmaster would send the opposite message, which meant forcing the group to rehire Dale would violate its freedom of speech.

The verdict infuriated liberals, who blasted Rehnquist’s opinion as a set back for civil rights and an affront to fundamental fairness. “The Court has essentially said that freedom of speech gives an organization the right to discriminate on the basis of an individual’s identity,” the American Civil Liberties Union said in a press release.  “James Dale’s case is a clear example of why New Jersey passed a non-discrimination law in the first place—so qualified people don’t suffer discrimination because of who they are.”

Now, however, the tables have turned, and a progressive health care journal is citing Dale to justify its own discriminatory practices: In response to a civil rights lawsuit, Health Affairs says it has a First Amendment right to exclude white applicants to the journal’s “health equity” fellowship—because doing so is the only way to convey its stance that “diverse” scholarship is “vital to health equity.”

The fellowship’s eligibility requirements, which explicitly bar whites from applying, “cannot be separated from the overall expressive goals” of the program, the journal argued in a September court filing. “As such, the criteria are a form of expression protected by the First Amendment.”

The lawsuit, filed in the District Court for the District of Columbia, hints at a major shift in free association’s political undertones. Over the past half century’s civil rights battles, whether it was women seeking to join all-male clubs or blacks seeking to join all-white private schools, conservatives often emphasized the right to free association and argued that it trumped the demand for inclusion.

It was liberals who resisted First

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