The book demonstrates that the "right" to discriminate has a long and unpleasant history. The claim for absolute protection of noncommercial associations from the civil rights laws, increasingly fashionable among liberal scholars, is only a mildly modified version of older, discredited libertarian arguments against any anti discriminations laws at all. The authors bring together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations.

Koppelman is a heterosexual law professor whose primary reputation rests on his work defending gays' rights, especially providing a refined defense of the analogy with race-based discrimination. Here, he teases out the complicated impact of the antigay Supreme Court decision of Boy Scouts of America v. James Dale, in which the BSA won the right to exclude all gays as adult leaders based on their status as an expressive association. According to their argument, a gay troop leader would dilute its ability to message heterosexual superiority.

According to Koppelman, in order to reach this result the Court had to write in such broad terms that practically any association, whether nonprofit or commercial, can claim an exemption from nondiscrimination laws based upon their expressive activity. As he develops his arguments, the author provides some interesting jurisprudential background on the species of libertarian beliefs that property carries an absolute right to exclude (this right did not exist in the common law, but appeared only after the Civil War; while libertarians assert the right as self-evident, historically it emerged as the racist urge to exclude newly emancipated blacks from the marketplace.).

I found his inability to state with clarity that homosexuality was not intrinsically inferior to heterosexuality a bit unsettling. Believing apparently that the immorality of homosexuality remains an open question, he must look elsewhere to find a suitable basis to analogize exclusion on the basis of sexual orientation with the exclusion on the basis of race. The outcome is that while Koppelman's reason leads him to support gays' rights, his heart and passion don't seem to be wholly there. But maybe this is asking too much. ( )