Boy Scouts of America v. Dale, James (06/28/2000)

5-4 for Boy Scouts of America (June 28, 2000)

1st Amendment association rights, homosexuals

Questions presented:

Whether a state law requiring a Boy Scout Troop to appoint an avowed homosexual and gay rights activist as an Assistant Scoutmaster responsible for communicating Boy Scouting’s moral values to youth members abridges 1st Amendment rights of freedom of speech and freedom of association.

Brief:

James Dale was an exemplary scout.

He first became a member of the Boy Scouts of America’s Monmouth Council's Cub Scout Pack 142 at the age of eight and remained a youth member until his eighteenth birthday in l988. Over the years of his membership with the scouts, he earned 25 merit badges.

The Boy Scouts of America (BSA) is a federally chartered corporation. Since its inception in 1910, over eighty-seven million youths and adults have joined it. The organization’s success in attracting members is attributable to its long-standing commitment to a diverse and "representative" membership, as well as to its aggressive recruitment through national television, radio, and magazine campaigns. The organization’s mission, as set forth in its mission statement, is "to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime...."

BSA does not endorse any specific religion or set of moral beliefs, instead encouraging its members to be guided by their own conscience or ethical judgment. In addition, consistent with its policy of leaving matters of religion and sexual responsibility to church and home, the organization discourages its leaders from discussing sexual topics.

In 1988, the scouts awarded Dale the Eagle Scout Badge, an honor achieved by only top three percent of all scouts.

Dale applied for adult membership in 1989 and was accepted for the position of assistant scoutmaster of troop 73. About six months later he left home to attend Rutgers University. While at college, Dale acknowledged to his family and friends that he was gay. He became involved in the Rutgers University Lesbian/Gay Alliance of which he was elected co-president.

In July 1990, Dale attended a seminar which addressed the psychological and health needs of lesbian and gay teenagers. In a news story on the seminar, the New Jersey Star Ledger ran a photograph of Dale captioned "co-president of the Rutgers University Lesbian/Gay Alliance."

Later that month, Dale received a letter from Monmouth Council Executive James W. Kay revoking his scouts membership and directing him to "sever any relationship (he) may have with the Boy Scouts of America." Kay granted him 60 days to request a review of his termination from the Monmouth Council Regional Review Committee.

Dale wrote back on Aug. 8, 1990, requesting to be informed about the grounds for his disqualification and was notified by Kay that the "grounds for (his) membership revocation" were "the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals."

Dale wrote a letter to the Northeast regional director of the boy scouts, asking for a review of his membership decision and a copy of the scout's leadership standards. The director got back to him saying that the Northeast review committee supported the decision of the Monmouth membership revocation.

Three weeks later, Dale wrote to the Chief Scout executive and requested a rehearing and an opportunity to attend the review. He was informed by counsel for the scouts that he had been denied the right to attend the review as "BSA does not admit avowed homosexuals to membership in the organization so no purpose would apparently be served by having Mr.Dale present at the regional review meeting."

Believing that a national council review "would be futile," Dale filed a suit in the Superior Court of New Jersey on July 29,1992, against the scouts and Monmouth council, seeking immediate reinstatement.

Dale alleged that the Boy Scouts had violated the New Jersey Law Against Discrimination (LAD) and common law by revoking his membership based solely on his sexual orientation. The LAD prohibits discrimination on the basis of "race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex."

The trial court dismissed the suit after concluding that Dale was a "sexually active homosexual" and that the scouts had always had a policy of excluding homosexuals. The court ruled that the LAD was not applicable because the scouts was not a place of public accommodation. The court also rejected Dale's common law claim, stating that the state's policy was that established by the LAD. The court believed that the organization’s moral position with respect to active homosexuals was clear and found that its 1st Amendment freedom of expressive association prevented government from forcing the scouts to accept Dale as an adult leader-member.

The Appellate Division reversed, holding that as a "place of public accommodation," the scouts had violated the LAD by denying Dale the privilege of serving as a volunteer assistant scoutmaster based solely on his sexual orientation. That court found the scouts to be a place of public accommodation based on several factors, including its broad-based membership solicitation and the fact that the organization had "historically partnered" with various public entities and public service organizations.

The court also addressed the claim by the scouts that enforcing the LAD on the group would violate its 1st Amendment freedom of expressive association. It concluded that granting Dale access to the accommodations afforded by scouting will not affect in any significant way the ability of the scouts to express its views and to carry out its activities.

The Monmouth Council & the BSA then appealed to the Supreme Court of New Jersey.

In a unanimous opinion, the New Jersey Supreme Court affirmed, holding that the boy scouts are a place of "public accommodation" and are therefore bound by the state's anti-discrimination law, which specifically bans discrimination based on sexual orientation. The court further emphasized the significance of the role of "genuine membership selectivity" as a material factor in the characterization of a place of accommodation as "public."

In a concurring opinion, one of the justices denounced certain unfounded stereotypical notions in respect of homosexuals, such as the myth that a homosexual male is more likely than a heterosexual male to molest children, as well as the myth that homosexuals are inherently immoral.

The Boy Scouts of America and the Monmouth Council filed a petition for a writ of certiorari to the U.S. Supreme Court.

The U.S. Supreme Court granted certiorari on January 14, 2000.

Among those filing amicus briefs in the Supreme Court in support of James Dale were the American Bar Association, American Public Health Association, State of New York et al., City of Atlanta et al., General Board of Church and Society of the United Methodist Church et al., Deans of Divinity Schools and Rabbinical Institutions, American Psychological Association, Parents, Families, and Friends of Lesbians and Gays, Inc. et al., Society of American Law Teachers, American Association of School Administrators et al., State of New Jersey, Civil Liberties Union et al., and the American Jewish Congress Pool et al.

Others filing amicus briefs were the Pacific Legal Foundation, John J. Hurley et al., State Club Association et al., Becket Fund for Religious Liberty, U.S. Catholic Conference et al., Liberty Legal Institute, Forum Education and Legal Defense Fund, Christian Legal Society et al., Center for the Original Intent of the Constitution, Lesbians for Individual Liberty, National Legal Foundation, Family Defense Council et al., Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, Family Research Council, Claremont Institute Center for Constitutional Jurisprudence, American Center for Law and Justice et al., Individual Rights Foundation, Public Advocate of the United States. National Catholic Committee on Scouting et al., and the American Civil Rights Union.

On June 28, 2000, a sharply divided Court held that New Jersey's public accommodation statute could not be interpreted constitutionally to require the Boy Scouts of America to admit Dale because it violates the organization’s 1st amendment right of freedom of association.

The 5-4 vote held that the forced inclusion of an unwanted person in a group infringes on the group's rights if the presence of that person affects the group’s ability to advocate its viewpoints.

"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," wrote Chief Justice William Rehnquist for the majority comprised of Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.

The Court concluded that the 1st Amendment 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 in regards to homosexual conduct, and the Court majority found it sufficient.

"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," wrote Rehnquist in a 19-page opinion. "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."

But in their dissent Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer said the Boy Scouts’ position on homosexuals was merely arbitrary, not a set policy. They argued that the organization practices discrimination not expressive association.

"Whatever values BSA seeks to instill in Scouts, the idea that homosexuality is not ‘appropriate’ appears entirely unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of the BSA," wrote Stevens. "That idea does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy appears to be no more than a private statement of a few BSA executives that the organization wishes to exclude gays and that wish has nothing to do with any expression BSA actually engages in."

The dissenting justices did not take aim at the Boy Scouts’ declaration that it is a private organization, regardless of its huge membership and long-term presence in the lives of millions of young men in America.

In its ruling, the Court majority agreed with the Boy Scout’s assertion that, "homosexual conduct is inconsistent with the values it seeks to instill."

But in his dissent, Stevens wrote, "BSA’s broad religious tolerance combined with its declaration that sexual matters are not its 'proper area' render its views on the issue equivocal at best and incoherent at worst. We have never held, however, that a group can throw together any mixture of contradictory positions and then invoke the right to associate to defend any one of those views."