To connect Professor Duncan's comment with some earlier posts, if Justice Kennedy is embracing a "libertarian" approach, one focussed on liberty, where does that leave a host of other regulations, form those identified by Scalia to organizations like the Boy Scouts or to private corporations and clubs. In other words, how does the Court reconcile liberties "to define one's existence" a la Casey, with other liberties that say "not in this neighborhood [or club or organization}"? This has of course earlier analogues, so there are constitutioal resopurces to do it, but no one has seemed yet ti consider these questions, at least not in as provocative a way as professor Duncan.
One commentator has suggested (in light of a recent NH case) that the Elks, who are now required to admit women members and will face a damages claim if "offensive" remarks should be heard in the clubhouse, should just anounce themselves as a homosexual organization and thus be tolerated. But as a social organization with a public component, their "intolerance" is not acceptable. One can see the logic of Lawrence being extended in this way without too much effort.
