Boy Scouts of America v. Dale

Boy Scouts of America et al v. Dale, 530 U.S. 640 (2000), was an opinion of the Supreme Court of the United States overturning the New Jersey Supreme Court's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America to readmit assistant scoutmaster James Dale, who had been expelled after publicly declaring his homosexuality. The Supreme Court held that the lower court's decision unconstitutionally violated the Boy Scouts' rights, specifically the freedom of association, which allows a private organization to exclude whomever it wishes. The case was argued on April 26, 2000 and was decided on June 28, 2000.

Background

The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. James Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist.

Dale, an Eagle Scout, filed suit in the New Jersey Superior Court, alleging, among other things, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The case went to the New Jersey Supreme Court which ruled against the Boy Scouts, saying that they violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among other rulings, the court (1) held that application of that law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' ability to carry out their purposes; (2) determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and (3) held that Dale's reinstatement did not compel the Boy Scouts to express any message.

The Boy Scouts appealed to the United States Supreme Court, which granted certiorari to determine whether the application of New Jersey's public accommodations law violated the First Amendment.

The case

Chief Justice William Rehnquist wrote the majority opinion. It relied heavily upon an earlier case, Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). In that decision the supreme court observed that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right, the Roberts decision continues, is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "freedom of association ... plainly presupposes a freedom not to associate."

However, to determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." After reviewing the Scout Oath and Scout Law the court decided that the general mission of the Boy Scouts is clear: "[T]o instill values in young people." The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts' values--both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity.

• First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.

• Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above.

• Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes. The presence of an avowed homosexual and gay rights activist in an assistant scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.

The Supreme Court further ruled that the New Jersey Supreme Court had interpreted too broadly the term public accommodation in the New Jersey statute at question. Finally, the decision concludes:

"We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."

The judgment of the New Jersey Supreme Court was reversed, and the cause remanded for further proceedings not inconsistent with the new opinion.