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The Next Chief Justice

© Frank Monaldo

"[I] assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black. I come to state that I am a man, free to think for myself and do as I please."   -   Judge Clarence Thomas before the National Bar Association.

THE LAST COUPLE OF WEEKS have made clear the long-term importance of the presidential elections in 2000.

First, the New Jersey Supreme Court ruled that the Boy Scouts of America (BSA) to be a "public accommodation." As such, the Boy Scouts are not free to establish their own admission requirements.

The finding that the Scouts were a public accommodation was necessary to overcome the Constitutional protection of freedom of association, which gives private organizations the right establish their own criteria for membership. While membership in the Boy Scouts is broad, is does require prospective members to agree to certain propositions, requirements a few robed individuals in New Jersey disagreed with.

The fact that the New Jersey Court's decision was based on the preferences of the judges was clear in the wording of the decision. The Court argued that homosexuality is not a moral failing. Of course, whether it is or is not is irrelevant to whether the BSA is a public accommodation. The decision was a simple facade behind which the justices imposed their own moral beliefs on an essentially private organization. The court's argument was sophistry employed to stretch the tarp of public accommodation beyond its logical extent. A court in California, however, ruled differently. The issue will not be settled until the Supreme Court rules.

In an attempt to prove the proposition that there is no idea so ill conceived that one cannot find a federal judge somewhere to champion it, a federal judge in Cleveland issued an injunction preventing students from participating in Cleveland's voucher program. Rather than wait for the merits of the case to be fully aired, the judge's injunction issued in August caused a last-minute scramble as 4,000 students struggle to find places in public schools at the last minute. Fortunately, U.S. District Judge Solomon Oliver Jr. reversed himself and allowed previously enrolled students to obtain their $2,500 vouchers. Some 500 new applicants to the voucher program aimed at the economically disadvantage will remain trapped in the public school system and will have to wait for full adjudication for a chance to exercise choice. The trial begins in December. The Supreme Court decision will ultimately be needed to make clear the way for vouchers.

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