Boy Scouts of America v. James Dale, 530
U.S. 640 (2000)
Petitioners are the Boy Scouts of America and the Monmouth Council,
a division of the Boy Scouts of America (collectively, Boy Scouts).
The Boy Scouts is a private, not-for-profit organization engaged
in instilling its system of values in young people. The Boy Scouts
asserts that homosexual conduct is inconsistent with the values
it seeks to instill. Respondent is James Dale, a former Eagle Scout
whose adult membership in the Boy Scouts was revoked when the Boy
Scouts learned that he is an avowed homosexual and gay rights activist.
The New Jersey Supreme Court held that New Jersey's public accommodations
law requires that the Boy Scouts admit Dale. This case presents
the question whether applying New Jersey's public accommodations
law in this way violates the Boy Scouts' First Amendment right
of expressive association. We hold that it does.
Dale entered scouting in 1978 at the age of eight by joining Monmouth
Council's Cub Scout Pack 142. Dale became a Boy Scout in 1981 and
remained a Scout until he turned 18. By all accounts, Dale was
an exemplary Scout. In 1988, he achieved the rank of Eagle Scout,
one of Scouting's highest honors.
applied for adult membership in the Boy Scouts in 1989. The Boy
Scouts approved his application for the position of assistant scoutmaster
of Troop 73. Around the same time, Dale left home to attend Rutgers
University. After arriving at Rutgers, Dale first acknowledged
to himself and others that he is gay. He quickly became involved
with, and eventually became the copresident of, the Rutgers University
Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing
the psychological and health needs of lesbian and gay teenagers.
A newspaper covering the event interviewed Dale about his advocacy
of homosexual teenagers' need for gay role models. In early July
1990, the newspaper published the interview and Dale's photograph
over a caption identifying him as the copresident of the Lesbian/Gay
that month, Dale received a letter from Monmouth Council Executive
James Kay revoking his adult membership. Dale wrote to Kay requesting
the reason for Monmouth Council's decision. Kay responded by letter
that the Boy Scouts "specifically forbid membership to homosexuals."
In 1992, Dale filed a complaint against the Boy Scouts in the
New Jersey Superior Court. The complaint alleged that the Boy Scouts
had violated New Jersey's public accommodations statute and its
common law by revoking Dale's membership based solely on his sexual
orientation. New Jersey's public accommodations statute prohibits,
among other things, discrimination on the basis of sexual orientation
in places of public accommodation. N. J. Stat. Ann. §§ 10:5-4
and 10:5-5 (West Supp. 2000) …
In Roberts v. United States Jaycees, 468 U.S. 609, 622, 82 L.
Ed. 2d 462, 104 S. Ct. 3244 (1984), we observed that "implicit
in the right to engage in activities protected by the First Amendment" is "a
corresponding right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious,
and cultural ends." This right is crucial in preventing the
majority from imposing its views on groups that would rather express
other, perhaps unpopular, ideas. See ibid. (stating that protection
of the right to expressive association is "especially important
in preserving political and cultural diversity and in shielding
dissident expression from suppression by the majority"). Government
actions that may unconstitutionally burden this freedom may take
many forms, one of which is "intrusion into the internal structure
r affairs of an association" like a "regulation that
forces the group to accept members it does not desire." 468
U.S. at 623. 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, "[f ]reedom of association
. . . plainly presupposes a freedom not to associate." Ibid.
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. New York State Club Assn.,
Inc. v. City of New York, 487 U.S. 1, 13, 101 L. Ed. 2d 1, 108
S. Ct. 2225 (1988). But the freedom of expressive association,
like many freedoms, is not absolute. We have held that the freedom
could be overridden "by regulations adopted to serve compelling
state interests, unrelated to the suppression of ideas, that cannot
be achieved through means significantly less restrictive of associational
freedoms." Roberts, supra, at 623.
To determine whether a group is protected by the First Amendment's
expressive associational right, we must determine whether the group
engages in "expressive association." The First Amendment's
protection of expressive association is not reserved for advocacy
groups. But to come within its ambit, a group must engage in some
form of expression, whether it be public or private.
The Boy Scouts is a private, nonprofit organization. According
to its mission statement:
"It is the mission of the Boy Scouts of America 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
in achieving their full potential.
"The values we strive to instill are based on those found
in the Scout Oath and Law: "Scout Oath: On my honor I will
do my best To do my duty to God and my country and to obey the
Scout Law; To help other people at all times; To keep myself physically
strong, mentally awake, and morally straight. …”
Thus, the general mission of the Boy Scouts is clear: "To
instill values in young people." Ibid. The Boy Scouts seeks
to instill these values by having its adult leaders spend time
with the youth members, instructing and engaging them in
activities like camping, archery, and fishing. 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.
The values the Boy Scouts seeks to instill are "based on" those
listed in the Scout Oath and Law. App. 184. The Boy Scouts explains
that the Scout Oath and Law provide "a positive moral code
for living; they are a list of 'do's' rather than 'don'ts.'" Brief
for Petitioners 3. The Boy Scouts asserts that homosexual conduct
is inconsistent with the values embodied in the Scout Oath and
Law, particularly with the values represented by the terms "morally
straight" and "clean."
Having determined that the Boy Scouts is an expressive association
and that the forced inclusion of Dale would significantly affect
its expression, we inquire whether the application of New Jersey's
public accommodations law to require that the Boy Scouts accept
Dale as an assistant scoutmaster runs afoul of the Scouts' freedom
of expressive association. We conclude that it does.
The state interests embodied in New Jersey's public accommodations
law do not justify such a severe intrusion on the Boy Scouts' rights
to freedom of expressive association. That being the case, we hold
that the First Amendment prohibits the State from imposing such
a requirement through the application of its public accommodations
We have recognized "a right to associate for
the purpose of engaging in those activities protected by the First
Amendment -- speech, assembly, petition for the redress of grievances,
and the exercise of religion." Roberts, 468 U.S. at 618. And
we have acknowledged that "when the State interferes with
individuals' selection of those with whom they wish to join in
a common endeavor, freedom of association . . . may be implicated." Ibid.
But "the right to associate for expressive purposes is not
. . . absolute"; rather, "the nature and degree of constitutional
protection afforded freedom of association may vary depending on
the extent to which . . . the constitutionally protected liberty
is at stake in a given case." 468 U.S. at 623, 618. Indeed,
the right to associate does not mean "that in every setting
in which individuals exercise some discrimination in choosing associates,
their selective process of inclusion and exclusion is protected
by the Constitution." New York State Club Assn., Inc. v. City
of New York, 487 U.S. 1, 13, 101 L. Ed. 2d 1, 108 S. Ct. 2225 (1988).
For example, we have routinely and easily rejected assertions of
this right by expressive organizations with discriminatory membership
policies, such as private schools, law firms, and labor organizations.
In fact, until today, we have never once found a claimed right
to associate in the selection of members to prevail in the face
of a State's antidiscrimination law. To the contrary, we have squarely
held that a State's antidiscrimination law does not violate a group's
right to associate simply because the law conflicts with that group's
exclusionary membership policy.
Unfavorable opinions about homosexuals "have
ancient roots." Bowers v. Hardwick, 478 U.S. 186, 192, 92
L. Ed. 2d 140, 106 S. Ct. 2841 (1986). Like equally atavistic opinions
about certain racial groups, those roots have been nourished by
sectarian doctrine. 478 U.S. at 196-197 (Burger, C. J., concurring);
Loving v. Virginia, 388 U.S. 1, 3, 18 L. Ed. 2d 1010, 87
S. Ct. 1817 (1967). See also Mathews v. Lucas, 427 U.S. 495, 520,
49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976) (STEVENS, J., dissenting)
("Habit, rather than analysis, makes it seem acceptable and
natural to distinguish between male and female, alien and citizen,
legitimate and illegitimate; for too much of our history there
was the same inertia in distinguishing between black and white").
Over the years, however, interaction with real people, rather than
mere adherence to traditional ways of thinking about members of
unfamiliar classes, have modified those opinions.
That such prejudices are still prevalent and that
they have caused serious and tangible harm to countless members
of the class New Jersey seeks to protect are established matters
of fact that neither the Boy Scouts nor the Court disputes. That
harm can only be aggravated by the creation of a constitutional
shield for a policy that is itself the product of a habitual way
of thinking about strangers. As Justice Brandeis so wisely advised, "we
must be ever on our guard, lest we erect our prejudices into legal
principles." If we would guide by the light of reason,
we must let our minds be bold. I respectfully dissent.