Boy Scouts of America v. Dale
In Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (U.S. 2000), the U.S. Supreme Court ruled that a New Jersey anti-discrimination law that required the Boy Scouts of America (BSA) to admit an openly gay man as a scoutmaster violated the Boy Scouts' FIRST AMENDMENT right of expressive association.
James Dale joined the Cub Scouts in 1978 at the age of eight. Three years later he became a Boy Scout and remained one until he turned 18. By all accounts, Dale was an exemplary scout, eventually achieving the status of Eagle Scout, the highest rank to which a scout can aspire. In 1989 Dale applied for adult membership and was approved. He then served as an assistant troop scoutmaster in Matawan, New Jersey during the periods he was not away at Rutgers University attending college. On August 5, 1990, Dale received a letter from the Monmouth Scout Council, informing him that his registration had been revoked. Registration was a prerequisite for service as an adult volunteer.
Asked to identify the grounds for the decision, Monmouth Council Executive James Kay told Dale that the BSA forbids "membership to homosexuals." Kay noted that Dale had been in a newspaper photograph taken at Rutgers, where he was co-president of the university's gay and lesbian campus organization. The accompanying newspaper story reported that Dale "admitt[ed] his homosexuality during his second year at Rutgers." According to Kay, Dale had demonstrated his inability to live by the Scout Oath and Law by publicly avowing his homosexuality.
Dale filed suit against the BSA in New Jersey state court, charging that his expulsion as an assistant scoutmaster violated New Jersey's Law Against Discrimination (LAD). N.J.S.A. 10:5-1 et seq. LAD prohibits discrimination based on several categories, including affectional or sexual orientation, which encompasses male or female heterosexuality, homosexuality, or bisexuality. The suit sought money damages and a court order reinstating him as assistant scoutmaster.
The trial court dismissed his suit, ruling that the BSA had consistently excluded any self-declared homosexuals. The court found that homosexuality, from a Biblical and historical perspective, was both morally wrong and criminal. The BSA had implicitly subscribed to this historical view since its inception, the court said. The LAD did not apply in Dale's case because the BSA was not a place of public accommodation and because the BSA, as a private association, could not be compelled to accept a gay scoutmaster because this would violate the FREEDOM OF ASSOCIATION guaranteed by the First Amendment to the U.S. Constitution.
The trial court's decision was overturned on appeal by New Jersey Superior Court, which concluded that the BSA was a "place of public accommodation" under the LAD. There were more than 100,000 BSA members in New Jersey alone, the appeals court said, demonstrating the public nature of the organization. The New Jersey Supreme Court affirmed the Superior Court's decision in Dale v. Boy Scouts of America, 160 N.J. 562, 734 A.2d 1196 (1999). The court found BSA had not demonstrated that it was a sufficiently private organization to warrant constitutional protection under the freedom of expression and association guarantees of the First Amendment.
The U.S. Supreme Court disagreed. In a 5–4 opinion written by Chief Justice WILLIAM REHNQUIST, the Court said that BSA enjoys a constitutionally protected right of "expressive association" that would be undermined if the organization were forced to accept the plaintiff as an assistant scoutmaster. Describing the Boy Scouts as a private organization that "believes homosexual conduct is inconsistent with the values it seeks to instill in its youth members," Rehnquist wrote that "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
As a basic principle, Rehnquist stressed, the forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. First, the Court said that the BSA engages in expressive activity by seeking to instill values in young people, and its expressive freedom would be curtailed if it had to accept avowed homosexuals as members despite the organization's policy to the contrary. Second, Rehnquist stated that the forced inclusion of an avowed gay rights activist as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints, since application of the LAD in this manner would significantly burden the organization's right to oppose or disfavor homosexual conduct. In a lengthy and spirited dissent, Justice JOHN PAUL STEVENS said the Boy Scouts had offered no evidence that it had any policy on homosexuality and that the absence of such a policy meant that the organization's shared goals could not be undermined by the acceptance of gay members and leaders."The evidence before this court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality," Stevens wrote. Stevens also chided the court majority for what he said was its willingness to simply accept the BSA's own claims about the organization's views on homosexuality."Unless one is prepared to turn the right to associate into a free pass out of discrimination laws, an independent inquiry is a necessity," he wrote.
Rehnquist was joined in the majority opinion by Justices SANDRA DAY O'CONNOR, ANTONIN SCALIA, ANTHONY M. KENNEDY, and CLARENCE THOMAS. Justices DAVID H. SOUTER, RUTH BADER GINSBURG, and STEPHEN G. BREYER joined Stevens in the dissent.
The ruling spurred many community organizations and governments to examine their relationships with the Boy Scouts. The Episcopal Diocese of Newark, New Jersey, which has 117 congregations, adopted a resolution deploring the scout policy. In Montclair, Cub Scout Pack 5 circulated petitions rejecting the BSA's anti-gay stance. A Princeton scout troop was denied permission to use a borough parking lot for its Christmas tree sale, and numerous companies and charities, including more than two dozen local United Ways, cut back or eliminated funding for the organization. Nonetheless, the BSA reported that revenues for the national operation rose from $91 million to $93 million in the year after the Supreme Court's decision.
Lester, Martha L., and Julie Levinson Werner. 2000. "High Court Deserves No Merit Badge for Boy Scouts of America v. Dale." New Jersey Law Journal 161 (July 17).
Powers, Elizabeth A. 2001. Boy Scouts of America v. Dale. Florida Law Review 53 (April): 399.
Smart, Christopher W. 2001. Boy Scouts of America v. Dale. Florida Law Review 53 (April): 389.