Boy Scouts of America v. Dale

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Boy Scouts of America v. Dale

Legal decision

By: Supreme Court of the United States

Date: June 8, 2000

Source: Boy Scouts of America v. Dale (99-699) 530 U.S. 640 (2000).

About the Author: The Supreme Court of the United States is the nation's highest court, with eight associate justices and one chief justice. The opinion in the Boy Scouts of America v. Dale case was delivered by Chief Justice William Renquist.


The Boy Scouts of America was founded in 1910 as a not-for-profit organization with the expressed mission to, "prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout Oath and Law." The Scout Oath states, "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." The organization is broken into small troops, consisting of fifteen to thirty scouts and led by a scoutmaster and assistant scoutmaster, and approximately sixty-five percent of these troops are sponsored by religious entities. Much of the activities of the scouts is considered instructional in nature. As a result, the scoutmaster performs the role of teacher and role model to his scouts and is expected to exemplify the ideology found within the Scout Oath and Scout Law. Although the Boy Scouts of America does not posses an explicit anti-homosexual stance, the organization advises its Scoutmasters to "instruct sexual abstinence until marriage in accordance with the 'morally straight' provision of the Scout's Oath."

Since its inception, over ninety million boys have entered into the Boy Scouts of America and the organization currently maintains a membership over five million. James Dale was one such member. Dale began as a Cub Scout at age eight and then entered the Boy Scouts. Throughout his membership, he earned twenty-five merit badges, was elected to the society of honor campers—Order of the Arrow, and was awarded the Scout's highest honor of Eagle Scout. In 1989, Dale's application to become Assistant Scoutmaster for Troop seventy-three in Monmouth, New Jersey was accepted. However, sixteen months later, Dale's membership into the Boy Scouts was revoked. Dale's position as assistant scoutmaster coincided with his entry into college at Rutgers University. While at school, Dale began to openly identify himself as a homosexual and became the co-president of the Rutgers University Lesbian/Gay Alliance in 1990. On July 8, 1990, an interview with Dale along with his photograph accompanied an article in the Newark Star Ledger entitled, "Seminar Addresses Needs of Homosexual Teens." As a result of this article, Dale was dismissed from his leadership role within the Scouts.

Dale sued the Boy Scouts of America under New Jersey's Anti-Discrimination laws and, in 1999, won his case for reinstatement under the New Jersey Supreme Court. Initially, the state superior court, chancery division, identified the Boy Scouts as a "distinctly private group" and therefore was exempt to New Jersey's public accommodation laws. The court asserted that by forcing the Scouts to accept Dale as a leader would be an infringement on the organization's freedom association. The Appellate Court unanimously overturned that decision and declared that the Boy Scout's widespread membership constituted a "public accommodation" similar to a hotel or restaurant and therefore must comply to state anti-discrimination laws. As a result, the U.S. Supreme Court heard the argument of Boy Scouts of America v. Dale on April 26, 2000.


"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA….

The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy Scouts of America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994) Cal. 4th 670, 952 P.2d 218 (1998). We cannot doubt that the Boy Scouts sincerely holds this view.

We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression See, e.g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National Party's associational rights and stating that "a State, or a court, may not constitutionally substitute its own judgment for that of the Party). That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. 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.

Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public accommodations law to require the organizers of a private St. Patrick's Day parade to include among the marchers an Irish-American gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First Amendment rights. We noted that the parade organizers did not wish to exclude the BLIB members because of their sexual orientations, but because they wanted to march behind a BLIB banner. We observed:

"[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals…. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." 515 U.S., at 574-575.

Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As the presence of BLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice not to propound a point of view contrary to its beliefs.

The New Jersey Supreme Court determined that the Boy Scouts' ability to disseminate its message was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of the following findings:

"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.

We disagree with the New Jersey Supreme Court's conclusion drawn from these findings.

First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. For example, the purpose of the St. Patrick's Day parade in Hurley was not to espouse any views about sexual orientation, but we had that the parade organizers had a right to exclude certain participants nonetheless.

Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues—a fact that the Boy Scouts disputes with contrary evidence—the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above.

Third, the First Amendment simply 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 with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if this is true, it is irrelevant. 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. 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.

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.

State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodations—like inns and trains. See, e.g., Hurley, supra, at 571-572 (explaining the history of Massachusetts' public accommodations law); Romer v. Evans, 517 U.S. 620, 627-629 (1996) (describing the evolution of public accommodations laws). Over time, the public accommodations laws have expanded to cover more places. New Jersey's statutory definition of "[a] place of public accommodation" is extremely broad. The term is said to "include, but not be limited to," a list of over 50 types of places. N.J. Stat. Ann. 10:5-5(l) (West Supp. 2000); see Appendix, infra, at 18-19. Many on the list are what one would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term "place A" to a physical location. As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express. In Roberts, we said, "[I] indeed, the Jaycees failed to demonstrate … any serious burden on the male members' freedom of expressive association. " 468 U.S., at 626. In Duarte, we said:

"[I]impediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First Amendment. In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes." 481 U.S. at 548 (internal quotation marks and citations omitted.)

We thereupon concluded in each of these cases that the organizations' First Amendment rights were not violated by the application of the States' public accommodations laws.

In Hurley, we said that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." 515 U.S., at 572. But we went on to note that in that case "the Massachusetts [public accommodations] law has been applied in a peculiar way"because"any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wish to join in with some expressive demonstration of their own." Id, at 572-573. And in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any "serious burden" on the organization's rights of expressive association. So in these cases, the associational interest in freedom of expression has been set on one side of the scale, and the State's interest on the other.

Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391I/S/367 (1968), to evaluate the competing interests. There the court enunciated the four-part test for review of a governmental regulation that has only an incidental effect on protected speech—in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey's public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection. Thus O'Brien is inapplicable.

In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct. 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 law.

Justice Stevens' dissent makes much of its observation that the public perception of homosexuality in this country has changed. See post, at 37-39. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. See e.g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's conviction for burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that a Ku Klux Klan leaders' conviction for advocating unlawfulness as a means of political reform violates the First Amendment). And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.


In its petition to the U.S. Supreme Court, the Boy Scouts of America readdressed their argument that being forced to readmit Dale into a leadership role within the Scouts constituted a violation in the organization's First Amendment freedom of speech and freedom of association. The group cited that although homosexuality is not forbidden, the Scout's Oath calls for scouts to be "morally straight." The brief submitted by the Boy Scouts asserts that, "a society in which each and every organization must be equally diverse is a society which has destroyed diversity."

On the other hand, Dale argued that the organization's large, non-selective membership and lack of explicit language in its mission statement, oath, and law banning homosexuality required them to accept his membership under anti-discrimination laws. Dale asserted that "First Amendment rights are not absolute" and "the state has a compelling interest in eradicating invidious private discrimination." Dale cited past cases, such as a 1984 case in which the U.S. Supreme Court upheld the Minnesota Human Rights Act which prohibited private organizations (in particular, a Jaycees club) from discriminating on the grounds of gender. At the time, the court declared that the organization's First Amendment interests yielded to the state's compelling interest to end discrimination toward women.

In a five-to-four decision, the U.S. Supreme Court decided on behalf of the Boy Scouts of America, stating that the First Amendment protects private groups from complying with state anti-discrimination laws and allows them to exercise their right to association by excluding homosexuals. The court asserted expressive groups are free to deliver a discriminatory message and that the organization is to be the judge of its membership.



Richey, Warren and Kris Axtman. "Scouts Can Control Membership." Christian Science Monitor. (June 29, 2000): 92, 153.

"Discrimination and the Law." Economist (April 29, 2000): 335, 8168.

O'Quinn, John C. "How Solemn is the Duty of the Mighty Chief: Mediating the conflict of Rights in Boy Scouts of America v Dale." Harvard Journal of Law and Public Policy. (Fall 2000): 24, 1.