The Court was able to reach its decision because, rather than being required to look only at objective evidence, courts have broad discretion in determining what the expressive purpose, if any, of an organization is. [5] Such discretion allows courts to infuse their own biases and prejudices, either for or against the organization's asserted expressive message, into their decisions, as arguably the Court did in Dale...
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[5] Such discretion allows courts to infuse their own biases and prejudices, either for or against the organization's asserted expressive message, into their decisions, as arguably the Court did in Dale. To prevent this from happening, courts should adopt a clear statement rule: an organization that wishes to assert an expressive purpose that would require discrimination of a class protected by state law should be required to present a clear statement, found in the organization's written brochures, bylaws, official documents or other publications, of the organization's discriminatory message...
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