Caseflicks

Supreme Court of the United States • 2000

Boy Scouts of America v. Dale

530 U.S. 640 | 120 S. Ct. 2446 | 147 L. Ed. 2d 554 | 2000 U.S. LEXIS 4487

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Takeaway

In short, this case held that a state may not use an antidiscrimination law to force an expressive association to accept a leader when that inclusion would significantly alter the association’s chosen message.

Background

James Dale joined the Boy Scouts at age eight, eventually earned Eagle Scout status, and was approved as an adult assistant scoutmaster. While at Rutgers University, Dale publicly identified himself as gay and became copresident of the university’s Lesbian/Gay Alliance. After a newspaper reported on his advocacy for gay youth, the Monmouth Council revoked his adult membership, stating that the Boy Scouts specifically forbade membership by homosexuals.

Dale sued under New Jersey’s Law Against Discrimination, which barred discrimination based on sexual orientation in places of public accommodation. The trial court granted summary judgment for the Boy Scouts, concluding both that the statute did not apply and that forcing Dale’s admission would violate the organization’s associational rights. The New Jersey Appellate Division reversed on the statutory and constitutional issues, and the New Jersey Supreme Court affirmed. It held that the Boy Scouts was subject to the public-accommodations law and that readmitting Dale would not significantly impair its expression. The United States Supreme Court granted review on whether applying the statute in this manner violated the Boy Scouts’ First Amendment right of expressive association.

Issues

Issue #1

Whether the Boy Scouts of America is an expressive association protected by the First Amendment.

Holding

Yes. The Boy Scouts engages in expressive association because it seeks to instill a system of moral values in young people.

Reasoning

The First Amendment protects the right to associate with others to pursue political, social, educational, religious, cultural, and other expressive ends. That protection includes a corresponding freedom not to associate when compelled membership would alter an organization’s ability to express its chosen views.

The Boy Scouts’ stated mission is to help young people make ethical choices through the values embodied in the Scout Oath and Scout Law. It advances that mission through adult leaders who instruct Scouts and serve as examples. An organization that deliberately transmits moral values in this way engages in expressive activity, even if it is not principally an advocacy organization.

The Court independently reviewed the record because the constitutional conclusion depended on the facts surrounding the organization’s expression. It rejected the New Jersey Supreme Court’s effort to discount the Scouts’ asserted values as inconsistent or unwise. Courts may not deny First Amendment protection because they disagree with, or find incoherent, an association’s professed beliefs.

Issue #2

Whether requiring the Boy Scouts to retain Dale as an assistant scoutmaster would significantly burden the organization’s expression concerning homosexual conduct.

Holding

Yes. Dale’s forced inclusion as an openly gay adult leader and gay-rights activist would significantly interfere with the Boy Scouts’ asserted message that homosexual conduct is inconsistent with Scouting values.

Reasoning

The Boy Scouts asserted that homosexual conduct was inconsistent with the Scout Oath’s requirement that a Scout be “morally straight” and the Scout Law’s requirement that a Scout be “clean.” Its policies, including a 1978 statement and later position statements, supported its claim that avowed homosexuals were not acceptable Scout leaders and that the organization did not wish to promote homosexual conduct as legitimate behavior.

The Court gave substantial deference both to the association’s account of its own message and to its judgment about what would impair that message. Although an organization cannot evade antidiscrimination law merely by making a conclusory assertion of expressive harm, the record here supported the Scouts’ claimed position and its sincerity.

Dale was not simply an unidentified member with a private sexual orientation. He had publicly identified himself as gay, led a university gay-rights group, and described himself as a gay-rights activist. The Court concluded that his presence in an assistant scoutmaster’s uniform would communicate to Scouts and to the public that the Boy Scouts accepted homosexual conduct as legitimate.

The Court analogized to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, where parade organizers could not be forced to include a contingent whose participation would convey a message the organizers did not wish to endorse. The Boy Scouts did not need to make sexuality the central subject of its activities, loudly publicize its views, or demand unanimity among all members in order to claim protection for its official position.

Issue #3

Whether New Jersey may apply its public-accommodations law to compel the Boy Scouts to admit Dale as an adult leader despite the resulting burden on expressive association.

Holding

No. The First Amendment prohibits New Jersey from applying its public-accommodations law to require the Boy Scouts to retain Dale as an assistant scoutmaster.

Reasoning

A state may ordinarily enact and enforce public-accommodations laws to eliminate discrimination. Earlier cases had upheld such laws against associational challenges where required inclusion did not materially interfere with the organization’s expression or its ability to pursue its goals.

This case was different because compelled inclusion would directly and immediately burden the Boy Scouts’ protected expressive association. The Court rejected Dale’s proposed use of the intermediate-scrutiny test from United States v. O’Brien, reasoning that O’Brien concerns laws with incidental effects on expression, whereas this application of New Jersey’s law directly altered the association’s membership and expressive message.

Even assuming the State had a substantial or compelling interest in eliminating discrimination, that interest did not justify the severe intrusion found here. The State could not compel the Boy Scouts to accept an adult leader whose public identity and advocacy, in the organization’s view, contradicted the moral message it chose to convey.

The Court stressed that its result did not turn on whether the Scouts’ views about homosexuality were correct, popular, or socially acceptable. The First Amendment protects unpopular expression as well as popular expression, and governmental disapproval of an organization’s viewpoint cannot by itself justify compelling association that would derogate from that viewpoint.

Dissents

Justice Stevens

Reasoning

Justice Stevens dissented, arguing that the Boy Scouts had not shown that opposition to homosexuality was actually among the values it taught or collectively sought to advance. Its mission statement, federal charter, Scout Oath, Scout Law, and published handbooks did not identify homosexuality as immoral, and its materials generally directed Scouts to parents, religious leaders, teachers, and other professionals for guidance on sexual matters.

The terms “morally straight” and “clean” did not clearly address homosexuality. The handbooks defined those terms in broader language about honesty, purity, justice, cleanliness of speech, and respect for others. The organization’s nonsectarian structure also accommodated religious groups with divergent views on homosexuality, further undermining the claim that Scouting conveyed one settled moral position on the subject.

The internal 1978 policy and later statements did not establish the required expressive connection. The 1978 statement was undisclosed and merely stated an exclusionary membership policy. The later statements were issued after Dale’s expulsion, were inconsistent with one another, and did not show that Scouts were ever actually taught that homosexuality conflicted with Scouting’s stated values.

An organization does not prevail against an antidiscrimination law merely because it engages in some expression and prefers to exclude a particular group. Under Roberts and Rotary Club, the key question is whether required inclusion seriously burdens the organization’s actual shared goals or its collective effort to foster beliefs. In Justice Stevens’s view, the record showed no serious burden because the Boy Scouts had not clearly and consistently advocated a position about homosexuality.

Dale’s mere membership as an assistant scoutmaster did not itself express a message attributable to the Boy Scouts. Unlike the organized contingent in Hurley, Dale did not seek to march under a banner, deliver a message through Scouting, or use his troop to advocate gay rights. The Boy Scouts could enforce neutral rules preventing any leader, gay or straight, from discussing sexual matters with Scouts or promoting views contrary to Scouting policy.

Treating Dale’s open identity as an unavoidable message effectively turned the right of expressive association into a broad license to exclude. New Jersey’s law did not require the Boy Scouts to endorse Dale’s beliefs or conduct; it required the organization to judge him as an individual rather than exclude him based solely on sexual orientation. Justice Stevens therefore would have upheld the State’s application of its antidiscrimination law.

Justice Souter

Reasoning

Justice Souter joined Justice Stevens’s dissent and emphasized that the Court’s decision should not turn on whether the Boy Scouts’ view was progressive or regressive, popular or unpopular. A group’s viewpoint is ordinarily irrelevant to whether it receives First Amendment protection.

In his view, however, an expressive-association claim requires the organization to identify a clear position that it has unequivocally advocated over time through its customary channels of expression. The Boy Scouts failed to meet that threshold because it had not made sexual orientation the subject of consistent, public advocacy to Scouts or the public.

Justice Souter warned that allowing an association to invoke any vaguely stated ideal, or an asserted difference between an individual and a supposed group ideal, would make expressive association an easy trump over public-accommodations laws. A genuine association that clearly advocates a position may sometimes be entitled to exclude a leader publicly identified with an incompatible viewpoint, but the Boy Scouts had not established such a case here.