Boy Scouts of America v. Dale

Boy Scouts of America et al. v. Dale,, was a case 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 (BSA) to readmit assistant Scoutmaster James Dale. When he was a student at Rutgers University, Dale became copresident of the Lesbian/Gay student alliance. Then, in July 1990, he attended a seminar on the health needs of lesbian and gay teenagers. During the seminar he was interviewed, and the work was subsequently published. He was expelled from Scouting after BSA officials read the interview in a local newspaper and Dale was quoted as stating he was gay. The Supreme Court held that the lower court's decision unconstitutionally violated the rights of BSA, 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.

Dale was represented by Evan Wolfson, an attorney and noted gay/lesbian rights advocate. In addition to representing Dale, Wolfson has also worked on a number of high profile cases seeking legal recognition of same-sex marriages. Also representing Dale on a pro bono basis was the New York-based law firm Cleary Gottlieb Steen & Hamilton.

The Boy Scouts of America were represented by attorney George Davidson, a partner in the New York-based law firm Hughes Hubbard & Reed. Davidson is a former President of the Legal Aid Society and current chair of the Federal Defenders of New York.

Background
The Boy Scouts of America is a private, non profit organization engaged in instilling its system of values in young people. It asserts that homosexuality 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 James Dale is an adult whose position as assistant Scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is openly gay and a gay rights activist.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 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.

Majority Opinion
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 said: "Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment 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 Promise 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 seek to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, fishing etc. 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 same-sex relationships, and that is sufficient for First Amendment purposes. The presence of an openly gay 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.

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."

Dissenting Opinion
Justice Stevens dissented from the Court's decision. He first observed that "every state law prohibiting discrimination is designed to replace prejudice with principle." Justice Brandeis had observed in New State Ice Company v. Liebman that it "is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." In Stevens's opinion, the Court's decision interfered with New Jersey's experiment.

However, Justice Stevens's first point was that the Boy Scouts' ban on gay members hardly followed from its founding principles. The Boy Scouts sought to instill "values" in young people, "to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and the Scout Law, which set forth the Scouts' central tenets, assist in this goal. One of these tenets is that a Scout is "morally straight." Another is that a Scout is "clean." As these terms were defined in the Scout Handbook, Justice Stevens said, "it is plain as the light of day that neither one of these principles -- 'morally straight' and 'clean' -- says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts' Law and Oath expresses any position whatsoever on sexual matters."

What guidance the Boy Scouts gave to the adult leaders that have direct contact with the Scouts themselves urged those leaders to avoid discussing sexual matters. "Scouts... are directed to receive their sex education at home or in school, but not from the organization." Scoutmasters, in turn, are directed to direct "curious adolescents" to their family, religious leaders, doctors, or other professionals. The Boy Scouts had gone so far as to devise specific guidelines for Scoutmasters. (1) Do not advise Scouts about sexual matters, because it is outside the expertise and comfort level of most Scoutmasters. (2) If a Scout brings specific questions to his Scoutmaster, the Scoutmaster should answer within his comfort level, remembering that a "boy who appears to be asking about sexual intercourse... may really only be worried about pimples." (3) Boys with "sexual problems" should be referred to an appropriate professional.

Furthermore, the Boy Scouts is an ecumenical organization, and should not be seen to have a coherent message regarding homosexuality for this reason. "Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals, it is exceedingly difficult to believe that BSA nonetheless adopts a single particular religious or moral philosophy when it comes to sexual orientation."

A 1978 internal Boy Scouts document showed that it was unaware of any gay employees or volunteers, and avowed the Boy Scouts' policy to exclude gay people from volunteering in the absence of laws to the contrary. The majority had focused on the part that reaffirmed the Boy Scouts' policy against allowing gay people to volunteer; Justice Stevens, on the other hand, saw four aspects of this 1978 document that bore on a "proper disposition of this case." First, all the 1978 document did was adopt an exclusionary membership policy, and that alone had never allowed a free association claim to prevail. Second, the 1978 document was never public, unlike the more ambiguous Scout Oath and Scout Law. Third, the 1978 document expressly allowed for the possibility that the Boy Scouts might have to accede to other laws that one day might protect gay people from discrimination. Fourth, the 1978 document merely said that being gay was "inappropriate," without "connect[ing] that statement to a shared goal or expressive activity." To the extent the majority relied on other statements of the Boy Scouts made after it had revoked Dale's membership, Justice Stevens found those statements to be irrelevant. Justice Stevens wrote, "Indeed, in this case there is no evidence that the young Scouts in Dale's troop, or members of their families, were even aware of his sexual orientation, either before or after his public statements at Rutgers University."

One of those statements, a brief attempt in 1991 and 1992 to link its exclusionary membership to the terms "morally straight" and "clean," was particularly ineffective for Justice Stevens. He condemned it for failing to explain how being gay was "incompatible with being 'morally straight' and 'clean.'" Stevens found "no evidence that this view was part of any collective effort to foster beliefs about homosexuality."

In light of the ambiguity of the Boy Scouts' prior statements about being gay, how could Dale—or any other member of the public—have known that excluding gay people as members was a core aspect of its organizational beliefs? The Court had recognized a right of expressive association, which must, by necessity, express something. But with respect to the right of assembly, not all expression has been protected to the same degree. The Court had previously ruled that the Jaycees could not maintain a single-sex membership policy in the face of a Minnesota law that required places of public accommodation to be open to members of both sexes, and the Rotary Club in the face of California's Civil Rights Law. From these cases, Justice Stevens discerned the principle that the First Amendment only forces state antidiscrimination laws to yield to an exclusionary membership policy if the law seriously burdened such a policy, and exclusions based on sex are not seriously burdened by such laws. For Justice Stevens, the Boy Scouts' claim was even weaker because it had not produced any evidence that one of its expressive goals was to disapprove of homosexuality.

Thus, Justice Stevens could not understand the majority's rule under which it deferred to the organization's statement of its expressive goal and inquired no further. "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." This inquiry is not compatible with deferring to an organization's description of what its expressive goal is. "[U]nless one is prepared to turn the right to associate into a free pass out of antidiscrimination laws, an independent inquiry is a necessity."