After Dale, the question arose of what, if anything, restive governments at all levels could do to bring the Scouts to heel. A number of civil liberties and gay rights organizations took this position: “While organizations are entitled to hold whatever beliefs they choose, groups that act upon and instill disrespect and prejudice toward others have no right to special benefits or support from the government.” The purpose of this initiative was to deny the Scouts access to public facilities such as schools and parks for conducting their activities until they were prepared to admit gays.
That aggressive position should be rejected emphatically because the government should never be allowed to use its control over public resources to exclude some individuals while admitting others. Its resources are supported by the tax dollars of all individuals and groups. No more than any common carrier or public utility can the government play favorites among its citizens for political purposes.
Unfortunately, much Supreme Court authority ignores this basic position by allowing the government to dispense or withhold benefits on grounds it thinks appropriate. Thus, in the 1983 case of Bob Jones University v. United States, the Supreme Court wrongly held that the Free Exercise Clause of the First Amendment did not block a ruling by the Internal Revenue Service that lifted the tax-exempt status of Bob Jones because it refused to allow interracial dating. Once it is settled that the Free Exercise Clause insulates Bob Jones from a direct statutory mandate to allow interracial dating among its students, Bob Jones should have come out the other way. Only the federal government can give tax exemptions, which it cannot use to alter the level playing field between different lawful points of view. Those people who don’t like the university’s practice can go elsewhere.
More ominously, in 2009, the Supreme Court held by a five-to-four vote that Hastings Law School, a public institution, could deny the tiny Christian Legal Society the benefit of facilities open to other students because it would not accept members who did not unqualifiedly accept the teachings of Jesus Christ. Again, the Court stood aside while the dominant political players at the law school bullied a minority group. None of that should have ever been allowed to happen.