Advancing Tolerance and Equality Using State Constitutions: Are the Boy Scouts Prepared?

The traditional United States Supreme Court analysis for determining whether a group may exclude people from membership on the basis of sexual orientation involves a series of either/or choices. For example, in the context of the exclusion of homosexuals by the Boy Scouts of America, one issue is whether the Boy Scouts is a public accommodation.\u27 Another issue is whether homosexuals constitute a protected class. This Article argues that independent state constitutional analysis of this issue provides an opportunity to avoid the narrowing effects of the traditional dichotomies, and that courts should directly consider the interests of the parties. In addition, this Article encourages state courts to look to social science sources to better inform themselves about the various effects of and aspects involved in exclusion, and specifically the exclusion of young gay men