Hate exposed to the light of day: Determining the Boy Scouts of America's expressive purpose solely from objective evidence

In the 1980s, the U.S. Supreme Court took considerable steps toward decreas ing the uncertainty surrounding an organization's associational freedoms by requiring an organization seeking to exclude individuals solely based on s tatus to prove that its expressive purpose would be undermined if it includ ed such members. However, these Supreme Court cases failed to establish any consistent approach to determining an organization's expressive purpose. P roblems have arisen most acutely with the claims of gays seeking to be incl uded in the Boy Scouts of America (BSA), an organization with a multifacete d and vague message. As the law now stands, courts have broad discretion to decide what facts are relevant in determining the BSA's expressive purpose . Unfortunately, this broad discretion has led to some courts' accepting th e homophobic views of individual BSA members and leaders as the expressive purpose of the entire organization. This Comment proposes that the BSA's ex pressive purpose be determined only from objective evidence. If the BSA see ks constitutional protection to hate, its expressive purpose must be clearl y defined in position statements, written in recruiting brochures, announce d to sponsors, and referred to in either the original or amended bylaws.