Abstract
The three most significant, rightly-decided cases of the Supreme Court's 1999 Term were all First Amendment cases in which freedom of private expressive association prevailed over statism. 1 Boy Scouts of America v. Dale 2 was explicitly about the freedom of expressive association (and disassociation) of private noncommercial entities - like the Boy Scouts. Freedom won but, shockingly, just barely; one vote separated the majority from Justice Stevens's stunningly bigoted dissent - one of the most intolerant-of-religion opinions ever to appear in the U.S. Reports. 3 Troxel v. Granville 4 was not, on the surface, or as litigated and decided, about freedom of private expressive association, or even about the First Amendment generally. But that should have been the ground for the decision, not - as Justice O'Connor's plurality opinion thought - a combination of substantive due process and stare decisis that seems, perversely, to rest the rights of parents, and the family's freedom to define and defend itself against state aggression, on the same cracked constitutional foundation as the Court-created freedom of parents to kill their children up until the minute they are fully born. 5 Mitchell v. Helms 6 was an Establishment Clause case, not - at least not formally - a freedom of expressive association case. But Mitchell's biggest consequence lies in pointing out, finally and (almost) definitively, the error in the argument that the Constitution requires exclusion of private religious schools (and the families they serve) from general educational benefit programs because of the ...