686
Stevens, J., dissenting
653. So long as the record "contains written evidence" to support a group's bare assertion, "[w]e need not inquire further." Ante, at 651. Once the organization "asserts" that it engages in particular expression, ibid., "[w]e cannot doubt" the truth of that assertion, ante, at 653.
This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority itself acknowledges, "we are obligated to independently review the factual record." Ante, at 648- 649. It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims. But the majority insists that our inquiry must be "limited," ante, at 650, because "it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent," ante, at 651. See also Brief for Petitioners 25 ("[T]he Constitution protects [BSA's] ability to control its own message").
But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message of its choice, and it is not this Court's place to disagree with it. But we must inquire whether the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is significantly affected by a State's antidiscrimination law. More critically, that inquiry requires our independent analysis, rather than deference to a group's litigating posture. Reflection on the subject dictates that such an inquiry is required.
Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State's antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws. But that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary member-
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