Boy Scouts of America v. Dale

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2000 United States Supreme Court case

Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000), is a landmark decision of the U.S. Supreme Court , decided on June 28, 2000, which held that the constitutional right to freedom of association allowed the Boy Scouts of America (BSA) to exclude a homosexual person from membership in spite of a state law requiring equal treatment of homosexuals in public accommodations . More generally, the court ruled that a private organization such as the BSA may exclude a person from membership when "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints". In a 5–4 decision, the Supreme Court ruled that opposition to homosexuality is part of BSA's "expressive message" and that allowing homosexuals as adult leaders would interfere with that message.

The ruling reversed a decision of the New Jersey Supreme Court that had determined that New Jersey's public accommodations law required the BSA to readmit assistant Scoutmaster James Dale , who had come out and whom the BSA had expelled from the organization for that reason. Subsequently, the BSA lifted its bans on gay scouts and gay leaders in 2013 and 2015, respectively.

Background

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Scoutmaster James Dale

The Boy Scouts of America is a private, non-profit organization engaged in instilling its system of values in young people. At the time of the case, it asserted that homosexuality was inconsistent with those values.

When Dale was a student at Rutgers University , he became co-president of the Lesbian/Gay student alliance. In July 1990, he attended a seminar on the health needs of lesbian and gay teenagers, where he was interviewed. An account of the interview was published in a local newspaper in which Dale was quoted as saying he was gay . BSA officials read the interview and expelled Dale from his position as assistant Scoutmaster of a New Jersey troop. 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 New Jersey Supreme Court 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.

Counsel

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Evan Wolfson , attorney for James Dale

Dale was represented by Evan Wolfson , an attorney and noted LGBT rights advocate. 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 chair of the Federal Defenders of New York.

Decision

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The Supreme Court decided 5–4 for the BSA on June 28, 2000.

Majority opinion

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Chief Justice William Rehnquist

Chief Justice William Rehnquist 's majority opinion held that expressive associations are protected from being forced to transmit messages contrary to their beliefs, and that the state public accommodations law may not be applied to burden the Boy Scouts' associational right.

The Court begins its analysis by affirming a fundamental principle: the right to expressive association is an essential component of the First Amendment. This right allows individuals to join together to pursue a broad range of goals—political, social, religious, and cultural. Its purpose is to promote cultural diversity and protect dissident expression from being silenced. However, it is not an absolute freedom, and there have been tensions with public accommodations laws as the concept of a "public accommodation" has been stretched from commercial businesses to private membership organizations. The Supreme Court has acknowledged that states have a compelling interest in eradicating discrimination, and performs a balancing test in expressive association cases: it weighs the organization's expressive associational interest against the state's interest, examining whether the law's application imposes a serious burden on the group's freedom of expression. The Court ruled that application of public accommodations law to force the Boy Scouts to accept Dale as a scoutmaster would unconstitutionally burden the Boy Scouts' associational right.

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 a de novo review of the factual record, including the Scout Oath and Scout Law , the court decided that the general mission of the Boy Scouts was clear—"to instill values in young people"—an expressive activity protected by the First Amendment. The Court firmly rejected the New Jersey Supreme Court's finding that the Boy Scouts' expressive message would remain unharmed. The state court had reasoned that opposing homosexuality was not the group's primary purpose, that it discouraged leaders from discussing sexual topics, and that it included members with diverse views. The Supreme Court found this analysis legally flawed.

First, an expressive association is protected from being forced to convey a message contrary to its beliefs, even if advocating views about homosexuality is not the association's central purpose.

The Court afforded significant deference to the Boy Scouts’ own assertions about:

1. The nature of its expression: The Boy Scouts asserted that it "teach[es] that homosexual conduct is not morally straight", and that it does "not want to promote homosexual conduct as a legitimate form of behavior".
2. What would impair that expression: The Boy Scouts asserted that an openly gay scoutmaster would “force the organization to send a message” undermining its expressive activity.

Second, even assuming the Boy Scouts prefers its leaders to avoid explicit discussions on sexuality, the First Amendment protects the organization's chosen method of expression. If the Boy Scouts aims to instill its values through example and conduct rather than verbal instruction on sexual topics, this pedagogical choice does not undermine the sincerity or constitutional significance of its underlying belief. The manner in which a group conveys its message is itself shielded by the First Amendment.

Third, while the policy may not represent the views of all Boy Scouts, the First Amendment "does not require that every member of a group

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