The most typical path to the nation’s high court is by APPEAL, either from a federal court of appeals or a state supreme court.. Defenders of bounty hunters note that theCOMMON LAWright
Trang 1eyewitnesses; all the reports were decidedly in support of the colonists The pamphlet, how-ever, was not distributed in Boston, due to the belief that it might interfere with the fairness of the trial
The trial became a controversial issue with political aspects In addition to the murder charge, the legal action intensified the struggle between the King’s men, who desired a verdict
in their favor to counteract the tactics of Samuel Adams, and the colonists, who wanted the trial to be an example to Parliament against further use of the MILITIA to restrain their freedom
Lieutenant Governor Hutchinson believed that an immediate court hearing would be detrimental and unfair to the King’s men; he advocated a series of postponements and the trial finally began in the fall of 1770 ROBERT TREAT PAINE served as PROSECUTOR, and JOHN ADAMS (cousin to Samuel Adams) and Josiah Quincy were the defense counselors
The trial progressed and arguments were presented for both sides The defense was determined to prove that the soldiers were acting
in SELF-DEFENSE The prosecution attempted to show that the soldiers were guilty of malice with intent to kill
Captain Preston was tried separately (there
is evidence that the jury was packed in his favor)
He was acquitted and he hastily left Boston
Eight soldiers were next brought to trial and six were acquitted The remaining two soldiers were found guilty ofMANSLAUGHTER(as opposed
to murder) The method of punishment was branding on the thumb The two soldiers, Matthew Killroy and Hugh Montgomery, re-ceived their penalty and were discharged from the military
The irony of the Boston tragedy is that it need never have occurred Shortly before the night of the bloodshed Parliament had decided
to repeal theTOWNSHEND ACTSthat had so greatly agitated the colonists Word of this decision did not reach Boston until later
The acts were revoked later in 1770, after the Boston Massacre; one tax remained, how-ever, and that was a minimal tax on tea This tea tax would later precipitate the Boston Tea Party
BOTTOMRY
A contract, in maritime law, by which money is borrowed for a specified term by the owner of a ship for its use, equipment, or repair for which the ship is pledged as collateral If the ship is lost in the specified voyage or during the limited time, the lender will lose his or her money according to the provisions of the contract A contract by which a ship or its freight is pledged as security for a loan, which is to be repaid only in the event that the ship survives a specific risk, voyage, or period
A bottomry bond is the instrument that embodies the contract or agreement of bottomry
vBOUDINOT, ELIAS The first lawyer admitted to practice before the U.S Supreme Court was New Jersey patriot ELIAS BOUDINOT A good friend of President George Washington’s, Boudinot was a promi-nent public official who strongly supported the American Revolution Boudinot held several key positions in the CONTINENTAL CONGRESS and signed the 1783 peace treaty with England after the United States’ victory in the WAR OF INDEPENDENCE After the war he aligned himself with Federalists JOHN ADAMS and ALEXANDER HAMILTON Like them, Boudinot supported a strong, centralized national government and distrusted many of the principles of participa-tory democracy
Born May 2, 1740, in Philadelphia, Boudi-not studied law and was admitted to the New Jersey bar in 1760 By 1770 he had risen to the prestigious level of SERJEANT AT LAW Although Boudinot began his career as a political conser-vative, he eventually supported the colonies’
On March 5, 1770,
English soldiers fired
into a crowd of angry
colonists, killing five.
Two of the soldiers
were later found
guilty of
manslaughter.
LIBRARY OF CONGRESS
Trang 2efforts to break away from English domination.
He joined the Revolutionary party after the U.S
War of Independence erupted and served as
deputy of New Jersey’s provincial assembly
Boudinot was a representative to the
Con-tinental Congress from 1777 to 1784 He was
president of the Congress from 1782 to 1784
and was named secretary of foreign affairs He
became commissary general of prisoners in
1777 and donated a large sum of his own
money to help improve prison conditions In
1787 Boudinot played a key role in obtaining
New Jersey’s RATIFICATION of the new U.S
Constitution
In 1789 Boudinot became a member of the
House of Representatives from New Jersey,
holding office during the first three sessions
of Congress Once the U.S Supreme Court was
officially established, Boudinot became the
first lawyer admitted to practice before it, on
February 5, 1790 He also served as a trustee of
Princeton University and was director of the
U.S Mint in Philadelphia from 1795 to 1805
In the later years of his life, Boudinot’s
interests turned from politics to evangelical
theology Founder and president of the
Ameri-can Bible Association, Boudinot proposed a
universal acceptance of RELIGION as a cure for
society’s ills
Boudinot died in New Jersey on October
24, 1821, at age 81
BOUNDARIES
Boundaries are natural or artificial separations
or divisions between adjoining properties that
show their limits
Boundaries are used to establish private
and public ownership by determining the exact
location of the points at which one piece of land
is distinguishable from another They are also used to mark the functional and jurisdictional limits of political subdivisions For example, in the United States, boundaries are used to define villages, towns, cities, counties, and states
The setting of boundaries is a characteristic
of the modern era of history during which centralized states emerged that required both protection against attacks and definition of their populations Historically, natural objects such
as rivers and mountains served this purpose
Accurate determination of boundaries requires surveying and cartography, which were not widely used until the early nineteenth century
But even in the early 2000s, with scientific information methods available, mapmakers occasionally are forced to turn to ancient landmarks and memories when attempting to set boundaries For example, for centuries the borders within the Arabian peninsula had been loosely defined by tribes’ grazing patterns
Following Saddam Hussein’s invasion of Kuwait and subsequent defeat in 1991, UNITED NATIONS mapmakers attempted to determine the exact border between Iraq and Kuwait The United Nations enlisted the help of British border expert Julian Walker, who sought out elderly guides who could describe the locations of landmarks referred to in earlier records and provide a starting place for demarcation of the border
Several types of maritime boundaries exist, such as the territorial sea, which is a belt of coastal waters—controlled by the adjacent state and subject to rights such as those of foreign ships to passage—whose boundary is a line measured three miles from the low-water mark along the shore; contiguous zones, which extend beyond the territorial sea to a maximum
THERE ARE NO EXPRESS WORDS;
AND THIS IS THE CASE WITH MOST OF THE POWERS EXERCISED
BYCONGRESS
—E LIAS B OUDINOT
◆
1740 Born, Philadelphia, Pa.
1760 Admitted to New Jersey bar
1775 American Revolution began
1777–84 Served
as representative
to the Continental Congress
1787 Helped obtain New Jersey's ratification of new U.S Constitution
1795–1805 Served as director of the U.S.
Mint in Philadelphia
1790 Became first lawyer admitted to practice before U.S Supreme Court
1788 Elected from New Jersey to U.S House of Representatives
1816 Founded the American Bible Association
1821 Died, Burlington, N.J.
1750
Trang 3of twelve miles, within which the controlling state may act to prevent or punish violations of its regulations; and a two-hundred-mile exclu-sive economic zone, subject to a nation’s rights
of exploration, exploitation, conservation, and management of marine life, which was autho-rized by the Third United Nations Conference
on theLAW OF THE SEA Marine boundaries provide fertile ground for international conflict In June 1990, the United States and the Soviet Union signed an agreement resolving a 1,600-mile-long maritime boundary dispute that began in 1977 The area
at issue, some 21,000 square nautical miles, contained valuable fishing grounds and possible oil and gas fields The conflict had its origins in
1867, when czarist Russia sold Alaska to the United States It was not until more than 100
years later, while establishing their respective 200-mile fisheries zones off the coasts of Alaska and Siberia in the Bering Sea, Chukchi Sea, and Arctic Ocean, that the two countries realized they had each set a different boundary for Alaska
Even marine boundaries that have been widely accepted for years can be suddenly ignored For example, in March 1995 Canada seized a Spanish trawler fishing for halibut in international waters just beyond Canada’s 200-mile boundary Foreign Affairs Minister Andre Ouellet of Canada claimed that a catastrophic decline in fishing stock in recent years gave Canada moral authority to extend its jurisdic-tion beyond the internajurisdic-tionally recognized 200-mile maritime limit
Boundaries in INLAND WATERS, such as the Canadian-U.S boundary through the Great Lakes, follow a median line equidistant from the opposite shores Boundaries in navigable rivers are set at the middle of the thalweg, which
is the deepest or most navigable channel, as distinguished from the geographic center or a line midway between the banks (United States v Louisiana, 470 U.S 93, 105 S Ct 1074, 84 L Ed 2d 73[1985]) As the thalweg shifts owing to the accumulation of sediment in the river, the geographic boundary also shifts The island exception to the rule of thalweg provides that if there is a divided river flow around an island, a boundary once established on one side of the island remains there, even if the main down-stream navigation channel shifts to the island’s other side (Louisiana v Mississippi, 516 U.S 22,
116 S Ct 290, 133 L Ed 2d 265[1995]) Boundary disputes between states often attract attention from the media and from legal scholars because they invoke the U S Supreme Court’s seldom-used ORIGINAL JURISDICTION The most typical path to the nation’s high court is by APPEAL, either from a federal court of appeals or
a state supreme court Article III, Section 2 gives the Court original jurisdiction to try cases
“affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall
be a Party.”
In 1993 the state of New Jersey filed a complaint in the Supreme Court against the state of New York, alleging that filled portions
of Ellis Island belonged to New Jersey In 1834
aCOMPACTbetween New York and New Jersey,
Within the
boundaries of an
exclusive economic
zone, a nation has the
right to drill for oil,
explore, and manage
marine life.
AP IMAGES
Trang 4approved by Congress, established the boundary
line between the states as the middle of the
Hudson River Ellis Island, then only three
acres, became part of New York according to
the compact The United States in 1891 decided
to use Ellis Island as a port to receive
immi-grants Over the next 42 years, the federal
government added 24.5 acres to the island to
facilitate its use as a portal for the more than
100 million immigrants who passed through
the island facilities Although the Ellis Island
IMMIGRATION Center closed in 1954, the site has
remained an important historical landmark
The Supreme Court in 1994 appointed aSPECIAL
MASTER, Paul Verkuil, to determine whether
the filled portion of the island belonged to
New York or to New Jersey (New Jersey v New
York, 513 U.S 924, 115 S Ct 309, 130 L Ed 2d
273 [1994]) Verkuil found that, although the
original 1834 compact designated the island as
the property of New Jersey, the compact did
not establish boundaries for the filled portions
of the island In a report filed with the Court
in 1997 (520 U.S 1273, 117 S Ct 2451, 138
L Ed 2d 209 [1997]), Verkuil concluded the
filled portions belonged to New York according
to the original compact, which set the boundary
line as the middle of the Hudson River In
1999, the Supreme Court concurred with the
special master in its final order and decree
(526 U.S 589, 119 S Ct 1743, 143 L Ed 2d
774 [1999])
New Jersey also had recurrent issues with
Delaware involving the shared boundary of
the Delaware River separating the states The
first matter was settled in 1907 by a compact
addressing respective fishing rights, but the
compact did not address the interstate
bound-ary line in the river (New Jersey v Delaware I,
205 U.S 550 [1907]) In 1934 the Supreme
Court settled the second dispute by determining
the location of the boundary (New Jersey v
Delaware II, 291 U.S 361 [1934]) In New Jersey
v Delaware III (128 S Ct 1410, 552 U.S _
[2008]), the Delaware Department of Natural
Resources refused to let British Petroleum (BP)
America construct a liquefied natural gas
terminal projected to extend some 2,000 feet
beyond the New Jersey shore into Delaware
territory The Supreme Court, by a 6-2 margin,
sided with Delaware It held that, while
Delaware could not interfere with ordinary
projects, it had the right to regulate industrial
development that affected Delaware’s waters and coastline, even though the project was based, and began in, New Jersey
A prior Supreme Court decision involved the states of New Hampshire and Maine New Hampshire officials filed a lawsuit asking the Supreme Court to decide whether the Ports-mouth Naval Shipyard is located in one state
or the other At stake in the case was approxi-mately $3 million per year in income taxes that Maine assesses against the nearly 1,400 New Hampshire residents who work at the shipyard
New Hampshire has no state INCOME TAX, and its residents who work at the shipyard asserted that the assessment constituted TAXATION with-out representation
The shipyard sits on Seavey Island, a 272-acre tract in the Piscataqua River between Kittery, Maine, and Portsmouth, New Hamp-shire New Hampshire contended that the island’s border lies along the Maine bank of the river, putting the shipyard in Maine In 1976, the U.S Supreme Court set the ocean boundary between the two states at a point in the mouth
of the Piscataqua (New Hampshire v Maine, 426 U.S 363, 371, 96 S Ct 2113, 2118, 48 L Ed 2d
701 [1976]) The 1976 decision left unclear how that boundary extends up river to Seavey Island The Court nevertheless decided that the doctrine of judicialESTOPPELprecluded New Hampshire from asserting a position that contradicted its position in the 1976 case (New Hampshire v Maine, 532 U.S 742, 121
S Ct 1808, 149 L Ed 2d 968 [2001]) The Court’s decision brought a conclusion to a controversy that began heating up in the early 1990s and that had involved a series of hearings
in the Senate Governmental Affairs Committee
in 1997
In Virginia v Maryland (540 U.S 56, 124
S Ct 598 [2003]), the issue was whether the state of Virginia could build a water intake pipe
in the middle of the Potomac River to provide water to Virginia residents In 1632 King Charles I, through CHARTER, had given the Potomac River to Lord Baltimore and the then-colony of Maryland Virginia argued that in 1785 the two states entered into an agreement which gave each“the privilege of making and carrying out wharfs and other improvements” in the Potomac The Supreme Court again appointed
a special master to review the matter, and
Trang 5ultimately agreed with his decision in favor of Virginia In a 7–2 opinion, the high court ruled that Virginia had sovereign authority, not compromised by the 1785 agreement, to build IMPROVEMENTS along the shore and withdraw water from the Potomac without interference from Maryland
Private boundary disputes have reached epic and dramatic proportions On June 14, 2003,
in Pikeville, Kentucky, representatives of the Hatfield and McCoy families signed a truce officially ending the most famous mountain clan feud of them all Some 60-plus descendants
of the two families, which engaged in a bloody dispute that claimed at least a dozen lives at its height in the 1870s and 1880s, signed a peace PROCLAMATION to place the feud in the history books once and for all The Hatfields and McCoys belonged to a single rural community
that was artificially separated by the boundary line between Kentucky and West Virginia The interfamilial dispute escalated over competing claims to timber rights on both sides of the meandering body of water
Some observers believe that the traditional role of boundaries as buffer regions protecting the national security of nations began to change in the 1950s Lawrence Herzog, professor of Mexican-American studies at San Diego State University, described the evolution of large-scale cities along the borders of nations, which he called transfron-tier metropolises, that share ecological resources such as water and environmental problems such
as sewage control andAIR POLLUTION Traditionally, divergent laws and customs in boundary areas have discouraged economic development by interfering with the movement of labor and commodities across borders
Bounty Hunter: Legitimate Law Enforcement or Dangerous
Anachronism?
Most citizens do not realize bounty
hunters still exist in modern
society and that these agents have few
limitations placed on them by state laws
Concerns have been raised about the
failure of many states to regulate the
actions of bounty hunters In general,
bounty hunters are not subject to civil
LIABILITYfor the injuries they may cause in
recapturing a person who has been
released on bond and fled Critics contend
that the legal privileges granted to bounty
hunters in the nineteenth century make
no sense today, and that it might be
prudent to outlaw bounty hunters
Defen-ders reply that bounty hunters serve an
important role in the criminal justice
system and should not be forced to follow
regulations that will prevent them from
carrying out their responsibilities
Defenders of bounty hunters note that
theCOMMON LAWright of recapture dates
back to the constitutional beginnings of
the United States They contend that
critics have ignored the underlying legal
relationship between the BAIL bonding company and the principal, the person who is bailed out of jail When the bonding company bails aDEFENDANTout of jail, the defendant waives his rights when he signs theBAIL BONDcontract Then, if a defendant fails to appear in court, the bail bond company may have to forfeit the bond it posted with the court If this system were not available, many defendants would not
be able to post bond themselves, and they would have to remain in jail, which would drive up the cost for local governments to house defendants awaiting trial In addi-tion, the bail bonding company serves as guarantor that the defendant will appear
in court This system also removes from
PUBLIC LAWenforcement the responsibility
of tracking down many defendants who fail to appear in court
Defenders also point out the signifi-cant difference between freelance bounty hunters and agents who work directly for the bail bonding company These agents, commonly known as bail agents,
are involved from just after arrest to the disposition of the case They are familiar with the workings of the local criminal courts and are trained by the bail bonding company In contrast, freelance bounty hunters cause most of the problems Defenders of bounty hunting believe that the occasional public outcries over violent recapture of a bail-skipper are the result
of a few irresponsible freelancers
Defenders rely on the U.S Supreme Court decision in Taylor v Taintor (83 U.S (16 Wall.) 366, 21 L Ed 287[1872]) The Taylor ruling, which remains good law, gives bounty hunters authority to seize and imprison a principal at any time The decision also allows bounty hunters to pursue a person to another state and arrest the pursued person without legal process Taylor concludes that the bail bonding company has the
“principal on a string,” and “may pull the string” whenever it pleases Defenders conclude, therefore, that the Court has given bounty hunters authority under the
Trang 6FURTHER READINGS
Epstein, Richard A 2000 Private and Common Property.
New York: Garland.
Herzog, Lawrence 1991 “International Boundary Cities:
The Debate on Transfrontier Planning in Two Border
Regions ” Natural Resources Journal 31.
——— 1990 Where North Meets South: Cities, Space, and
Politics on the U.S.-Mexico Border Austin, Tex.: CMAS
Books.
Robillard, Walter G 2009 Brown’s Boundary Control and Legal
Principles 6th ed Hoboken, NJ: John Wiley & Sons.
Spranking, John G 2000 Understanding Property Law New
York: Lexis.
CROSS REFERENCES
Estoppel; Fish and Fishing; International Waterways;
Territorial Waters
BOUNTY HUNTER
A bounty hunter is a person who is offered a
promised gratuity in return for “hunting” down and
capturing or killing a designated target, usually a person or animal
Bounty hunters can be described broadly as
a category of persons who track down someone
or something for money A bounty is a subsidy that is paid to a category of persons who have performed a public service Bounty is thePROPER term to be applied when the services of several persons are sought, and each person who fulfills the offer is entitled to the promised compensa-tion By contrast, a reward compensates a single service to be performed only once, such as in the capture of a fugitive Therefore, it will be earned solely by the person who succeeds in this regard
In practice, bounty hunters usually track down criminal defendants who skipBAILand fail
to appear for court appointments Bail skipping
U.S Constitution to practice their trade
This authority has never been revoked
Finally, defenders point out that
defendants who skip bail do not want to
be found and do not want to surrender, if
discovered Bounty hunters do not seek to
inflict injuries on principals or damage
property, but in many situations surprise
entry into a dwelling is required to effect
the arrest Physical resistance by the
principal leads to most of the violence
associated with bounty hunters
Critics of bounty hunters contend
that the time has long passed for bounty
hunters The Taylor decision was
ren-dered a few years after the Civil War, at a
time when the United States was
rela-tively unpopulated and the West was just
beginning to be settled Moreover, police
departments in urban areas were
inade-quate, poorly equipped, and badly
trained Cooperation between
jurisdic-tions was minimal, and there was no
organization similar to the FEDERAL
BU-REAU OF INVESTIGATION (FBI) with the
power to cross state borders in pursuit
of escaped felons In addition,
commu-nication between points separated by
great distances was poor At that time,
therefore, it made sense to allow bounty
hunters to track down persons who
jumped bail The critics argue that these considerations no longer make sense, when modern law enforcement has the benefit of the FBI, electronic communi-cation, and cooperation between juris-dictions
Critics believe that allowing bounty hunters to use questionable, and often violent, methods to recapture principals does not promote respect for the admin-istration of justice In addition, since the 1960s the Supreme Court has recognized that criminal defendants are entitled to numerous constitutional rights The
“due process revolution” runs counter
to the methods of bounty hunters, who can commit acts that law enforcement officers are prohibited from committing
Critics contend that it is unwise to allow
PRIVATE LAW enforcement to run rough-shod over the rights of persons, merely because they have entered into a con-tractual relationship
While some critics believe bounty hunters should be banned, others believe that states should regulate bail agents
Some states, such as Florida, require bounty hunters to be licensed and to be employed by only one bail bonding company that will supervise and be responsible for the agents Florida
imposes age and residence requirements
on licensed bounty hunters, who must also demonstrate they are of high moral character Some states also require
boun-ty hunters to complete a certification course in criminal justice within a few years of obtaining their license Some jurisdictions mandate that bounty hun-ters take continuing education courses
in their field every year Many of these reforms have been proposed by the National INSTITUTE of Bail Enforcement, which seeks to professionalize its membership and enhance its public reputation
Critics also believe it is essential that bounty hunters be held liable for inju-ries to persons and property State laws must, they argue, be amended to impose civil liability Such legislation would deter bounty hunters from taking dan-gerous actions that may injure innocent people Congress has not addressed this issue on a national level A bill that sought to make bounty hunters subject
to both civil and criminal liability for violations of federal rights under exist-ing federalCIVIL RIGHTSlaw died in 1999
As of 2009, the law governing bounty hunters is virtually the same as in the colonial era
Trang 7is a constant in the U.S criminal justice system.
In 2004, the DEPARTMENT OF JUSTICE reported that one-fourth of FELONY defendants who had been released on their own recognizance had failed to appear at their trials As of 2009, an estimated 14,000 licensed bounty hunters appre-hend between 25,000 and 35,000 fugitives in the United States each year It has been estimated that they return to custody over 95 percent of the criminal defendants who skip bail
Courts have granted bounty hunters exten-sive powers for the purposes of returning fugitives to justice These include the powers
to pursue fugitives into another state, to arrest them at any time, and to break into fugitives’
houses in order to capture them The powers of
a bounty hunter are usually received vicariously, through powers that already are invested in a bail bondsman
Bounty hunters have existed since medieval times—the notion of bail predates written ENGLISH LAW The foundation for bounty-hunter rights in the United States was laid down in the
1872 case of Taylor v Taintor (83 U.S [16 Wall.]
366, 21 L Ed 287[1872]) “Where one charged with crime is released upon bail, he is regarded
as being delivered to custody of his sureties
Their dominion is a continuance of the original imprisonment,” wrote the U.S Supreme Court,
in a decision that as of 2009 had never been overruled
There has been increasing controversy in the United States over bounty hunters, with concern voiced over the lack of control that
a state has over their behavior In response, some states have taken to curbing the bounty hunter’s activities For example, Arizona restricts bounty hunters from entering a resi-dence without the consent of an occupant, and
it prohibits bounty hunters from misrepresent-ing themselves as law enforcement agents or from working as a bounty hunter if convicted of certain crimes
FURTHER READINGS Drimmer, Jonathan 1996 “When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System ”Houston Law Review Vol 33 (fall).
Helland, Eric, and Alexander Tabarrok 2004 “The Fugitive:
Evidence on Public versus Private Law Enforcement from Bail Jumping ” Journal of Law and Economics Vol 47.
Patrick, Andrew DeForest 1999 “Running from the Law: Should Bounty Hunters Be Considered State Actors and Thus Subject to Constitutional Restraints?” Vanderbilt Law Review Vol 52 (January).
BOY SCOUTS OF AMERICA V DALE
In Boy Scouts of America v Dale, 530 U.S 640,
120 S Ct 2446, 147 L Ed 2d 554 (U.S 2000), the U.S Supreme Court ruled that a New Jersey anti-discrimination law that required the Boy Scouts of America (BSA) to admit an openly gay man as a scoutmaster violated the Boy Scouts’ FIRST AMENDMENTright of expressive association James Dale joined the Cub Scouts in 1978
at the age of eight Three years later he became
a Boy Scout and remained one until he turned
18 By all accounts, Dale was an exemplary scout, eventually achieving the status of Eagle Scout, the highest rank to which a scout can aspire In 1989 Dale applied for adult member-ship and was approved He then served as an assistant troop scoutmaster in Matawan, New Jersey, during periods when he was not away attending Rutgers University On August 5, 1990, Dale received a letter from the Monmouth Scout Council, informing him that his registration had been revoked Registration was a prerequi-site for service as an adult volunteer
Asked to identify the grounds for the decision, Monmouth Council executive James Kay told Dale that the BSA forbids“membership
to homosexuals.” Kay noted that Dale had been
in a newspaper photograph taken at Rutgers, where he was co-president of the university’s gay and lesbian campus organization The accompanying newspaper story reported that Dale“admit[ted] his homosexuality during his second year at Rutgers.” According to Kay, Dale had demonstrated his inability to live by the Scout OATH and Law by publicly avowing his homosexuality
Dale filed suit against the BSA in New Jersey state court, charging that his expulsion as an assistant scoutmaster violated New Jersey’s Law Against Discrimination (LAD), N.J.S.A 10:5–1
et seq LAD prohibits discrimination based
on several categories, including affectional or sexual orientation, which encompasses male
or female heterosexuality, homosexuality, or bisexuality The suit sought money damages and a court order reinstating him as assistant scoutmaster
Trang 8The trial court dismissed his suit, ruling
that the BSA had consistently excluded any
self-declared homosexuals The court found
that homosexuality, from a Biblical and
historical perspective, was considered both
morally wrong and criminal The BSA had
implicitly subscribed to this historical view
since its inception, the court said The LAD did
not apply in Dale’s case because the BSA was
not a place of public accommodation and
because the BSA, as a private association, could
not be compelled to accept a gay scoutmaster
because this would violate the freedom of
association guaranteed by the First
Amend-ment to the U.S Constitution
The trial court’s decision was overturned on
APPEAL by New Jersey Superior Court, which
concluded that the BSA was a“place of public
accommodation” under the LAD There were
more than 100,000 BSA members in New Jersey
alone, the appeals court said, demonstrating
the public nature of the organization The New
Jersey Supreme Court affirmed the superior
court’s decision in Dale v Boy Scouts of America,
160 N.J 562, 734 A.2d 1196 (1999) The court
found BSA had not demonstrated that it was a
sufficiently private organization to warrant
constitutional protection under the freedom of
expression and association guarantees of the
First Amendment
The U.S Supreme Court disagreed In a
5–4 opinion written by Chief Justice WILLIAM
REHNQUIST, the Court said that BSA enjoys a
constitutionally protected right of “expressive
association” that would be undermined if the
organization were forced to accept thePLAINTIFF
as an assistant scoutmaster Describing the Boy
Scouts as a private organization that “believes
homosexual conduct is inconsistent with the
values it seeks to instill in its youth members,”
Rehnquist wrote that“Dale’s presence in the Boy
Scouts would, at the very least, force the
organi-zation to send a message, both to the youth
members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate
form of behavior.”
As a basic principle, Rehnquist stressed, the
forced inclusion of an unwanted person in a
group infringes the group’s freedom of
expres-sive association if the presence of that person
affects in a significant way the group’s ability to
ADVOCATEpublic or private viewpoints First, the
Court said that the BSA engages in expressive activity by seeking to instill values in young people, and its expressive freedom would be curtailed if it had to accept avowed homo-sexuals as members despite the organization’s policy to the contrary Second, Rehnquist stated that the forced inclusion of an avowed gay rights activist as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints, because application of the LAD in this manner would significantly burden the organization’s right to oppose or disfavor homosexual conduct
In a lengthy and spirited dissent, Justice JOHN PAUL STEVENS said the Boy Scouts had offered no evidence that it had any policy on homosexuality and that the absence of such
a policy meant that the organization’s shared goals could not be undermined by the accep-tance of gay members and leaders “The evidence before this Court makes it exception-ally clear that BSA has, at most, simply adopted
an exclusionary membership policy and has no shared goal of disapproving of homosexuality,”
Stevens wrote Stevens also chided the Court majority for what he said was its willingness to simply accept the BSA’s own claims about the
Eagle Scout James Dale sued the Boy Scouts of America after he was removed from the Scouts because of his sexual orientation The Court favored the BSA.
GETTY IMAGES
Trang 9organization’s views on homosexuality “Unless one is prepared to turn the right to associate into a free pass out of discrimination laws, an independent inquiry is a necessity,” he wrote
Rehnquist was joined in the majority opinion by Justices Sandra Day O’Connor, ANTONIN SCALIA, ANTHONY M KENNEDY, and CLARENCE THOMAS Justices DAVID H SOUTER, RUTH BADER GINSBURG, and STEPHEN G BREYER joined Stevens in the dissent In the wake of the Dale decision, some have speculated that states may face First Amendment restrictions
in applying anti-discrimination laws to private organizations that, like the Boys Scouts, are engaging in what can be deemed to be expressive activity
The Dale ruling spurred many community organizations and governments to examine their relationships with the Boy Scouts The Episcopal Diocese of Newark, New Jersey, which has 117 congregations, adopted a resolution deploring the BSA policy In Montclair, Cub Scout Pack
5 circulated petitions rejecting the BSA’s anti-gay stance A Princeton scout troop was denied permission to use a borough parking lot for its Christmas tree sale, and numerous companies and CHARITIES, including more than two dozen local branches of the United Way, cut back or eliminated funding for the organization Despite community organizations and governments ex-amining their relationships with the Boy Scouts after Dale, however, the BSA reported that revenues for the national operation rose from
$91 million to $93 million in the year after the Supreme Court’s decision
The elimination of support to the Boy Scouts was challenged in Evans v Berkeley,
8 Cal 4th 1, 129 P.3d 394 (2006) In that case, the California Supreme Court upheld the right
of a governmental entity to deny a subsidy to
a sub-group of the Boy Scouts, due to the fact that it practiced discrimination based upon sexual orientation Hence, the court found that the entity’s refusal to subsidize the group’s discriminatory activities did not infringe upon the group’s exercise of speech or associational rights
FURTHER READINGS Lester, Martha L., and Julie Levinson Werner 2000 “High Court Deserves No Merit Badge for Boy Scouts of America v Dale.” New Jersey Law Journal 161 (July 17).
Powers, Elizabeth A 2001 “Boy Scouts of America v Dale.” Florida Law Review 53 (April): 399.
Smart, Christopher W 2001 “Boy Scouts of America v Dale.” Florida Law Review 53 (April): 389.
Urbina, Ian 2007 “Boy Scouts Lose Philadelphia Lease
in Gay-Rights Fight ” New York Times (Dec 6) CROSS REFERENCES
Discrimination; First Amendment; Freedom of Association and Assembly; Gay and Lesbian Rights.
BOYCOTT
A lawful concerted attempt by a group of people
to express displeasure with, or obtain concessions from, a particular person or company by refusing
to do business with them An unlawful attempt that is prohibited by the Sherman Anti-trust Act (15 U.S.C.A § 1 et seq.), to adversely affect a company through threat, coercion, or intimidation
of its employees, or to prevent others from doing business with said company A practice utilized
in labor disputes whereby an organized group
of employees bands together and refrains from dealing with an employer, the legality of which
is determined by applicable provisions of statutes governing labor-management relations
A classic example of this is a consumer boycott whereby a group of customers refuses
to purchase a particular product in order to indicate their dissatisfaction with excessive prices or the offensive actions of a particular manufacturer or producer
CROSS REFERENCE Labor Law.
vBOYLE, JOHN John Boyle was born October 28, 1774, near Tazewell in Botetourt County, Virginia He was admitted to the Kentucky bar in 1797 and established a legal practice in Lancaster, Ken-tucky, before entering government service
In 1800 Boyle participated in the Kentucky House of Representatives He served in the U.S House of Representatives as a member from Kentucky from 1803 to 1809 and participated
in the IMPEACHMENT hearings of Justice SAMUEL CHASE, who was accused but found not guilty
of prejudice in certain rulings
Boyle presided over the Kentucky Court
of Appeals from 1809 to 1810, acting as chief justice from 1810 to 1826 In that same year
he became U.S district judge for Kentucky
Trang 10and remained in that position until his death
January 28, 1835, near Danville, Kentucky
vBRACKENRIDGE, HENRY MARIE
Henry Marie Brackenridge was an eminent
lawyer, statesman, and author
Brackenridge was born May 11, 1786 His
LEGAL EDUCATIONwas varied, including the study
of law in Pittsburgh, Pennsylvania, admiralty
law in Baltimore, Maryland, and Spanish law
in New Orleans, Louisiana He was admitted
to the Pennsylvania bar in 1806 and practiced
law in Pennsylvania as well as Missouri and
Louisiana from 1810 to 1814, and in Baltimore
from 1814 to 1817
After serving as deputy attorney general and
district judge in Louisiana, Brackenridge was a
member of the Maryland legislature from 1814
to 1817 and from 1819 to 1821 He was a strong
supporter of the South American nations, and
in 1817 was sent to South America as part of
a commission to study the political conditions
of the area Subsequently, he relocated to Florida where he worked for GovernorANDREW JACKSONfrom 1821 to 1832, serving as secretary and judge of the Florida Territory
As an author, Brackenridge wrote many publications, including Views of Louisiana (1814); History of the Late War (1816); Voyage
to South America (1819); Letters to the Public, (1832); and History of the Western Insurrection
in Western Pennsylvania (1859)
Brackenridge died January 18, 1871, in Pittsburgh
BRACKET The category of the percentage of income tax found on the tax tables set by the Internal Revenue
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1774 Born,
Tazewell,
Va.
1775–83
American
Revolution
1792 Kentucky admitted as a state
to the Union
1803 Elected to U.S House of Representatives
1804 Participated in impeachment hearings of Justice Samuel Chase
1800 Elected to Kentucky House
of Representatives
1810 Became chief justice of Kentucky Court
of Appeals
1809 Appointed to Kentucky Court of Appeals
1807 Declined U.S Supreme Court justiceship offered by President Jefferson
1826 Appointed U.S district judge for Kentucky
1835 Died, Danville, Ky.
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1786 Born, Pittsburgh, Pa.
1803 President Jefferson "purchased"
Louisiana Territory
1806 Admitted to Pennsylvania bar
1811–14 Helped frame judicial system;
served as judge and deputy attorney general
1814 Views of Louisiana published
1821–32 Served as secretary and judge
in Florida Territory
1819 Voyage to South America published
1817 Sent to South America
to study political conditions
1834 Recollections
of Persons and Places in the West published
1859 History of the
Western Insurrection in Western Pennsylvania
published
1845 Florida gained U.S statehood
1861–65 U.S Civil War
1871 Died, Pittsburgh, Pa.
1800
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