Supreme Court Rules for Boy Scouts in Gay Membership Dispute

Ruling 5–4 in Boy Scouts of America v. Dale, 2000 WL 826941 (June 28), the U.S. Supreme Court held that the New Jersey Supreme Court’s application of the state’s public accommodation law to require the Boy Scouts of America (BSA) to reinstate openly-gay Jim Dale (described in the Court’s opinion as an “avowed homosexual and gay rights activist”) as an adult member and scout leader violates the BSA’s First Amendment right of expressive association. The majority opinion, by Chief Justice William Rehnquist, apparently an avowed heterosexual, asserted that requiring the reinstatement of Dale would be improperly forcing the BSA to articulate a message that homosexuality is acceptable for its members. In dissent, Justice John Paul Stevens argued that the record supported no such conclusion, and that the First Amendment was not even implicated in the case. Dale joined the Scouts as an 8–year old, working his way up through the ranks to attain the distinction of an Eagle Scout, the organization’s highest rank for a youth member. After turning 18, Dale applied to be an adult member, and was assigned as assistant scoutmaster to his New Jersey troop. Meanwhile, Dale enrolled at Rutgers University, finally accepted his sexual orientation and joined the Lesbian/Gay Alliance, becoming co-president in 1990. After a local newspaper printed an article about Dale’s participation in a seminar on problems of gay teens and identified him as co-president of the gay alliance, Dale received a letter from the local Scout council dismissing him from the organization. Responding to his follow-up inquiry, Monmouth Council Executive James Kay told him that the Scouts “specifically forbid membership to homosexuals.” In 1991, New Jersey’s gay rights law went into effect. Dale filed a lawsuit, asserting that he was being denied participation by a place of public accommodation on the basis of his sexual orientation. The state trial judge granted the Scouts’ motion for summary judgment, finding that the organization is not a place of public accommodation under the statute and, alternatively, that the Scouts are entitled to discriminate in membership based on a First Amendment right of freedom of association. The Appellate Division of the Superior Court reversed, finding that the law applies to the Scouts and rejecting the First Amendment defense, although one judge partially dissented, finding that the organization should be entitled to select its leaders without court interference. The New Jersey Supreme Court unanimously affirmed in 1999, and the Scouts petitioned for certiorari, raising the First Amendment defense as the only federal issue in the case. Chief Justice Rehnquist’s opinion, which was joined by Justices Scalia, Thomas, Kennedy and O’Connor, rather extraordinarily held that the Court must defer to the Scouts’ determination of two factual issues vital to the case: that the organization is engaged in an “expressive association” that includes the expression of disapproval of homosexuality, and that compliance with New Jersey’s public accommodation law in Dale’s case would significantly burden that expressive association. The New Jersey Supreme Court had unanimously ruled against the Scouts on both points, finding that the BSA’s publicly articulated policies did not include any coherent anti-gay message or purpose, and thus that the organization’s right of expressive association would not be burdened by the court’s order to reinstate Mr. Dale as an assistant scoutmaster. On behalf of the Court, Rehnquist took the view that so long as the BSA’s position appeared to be genuinely held and found some support in the record, it would not be appropriate for the Court to substitute its own finding as to what the organization’s expressive purpose is. The BSA argued that part of its expressive function is to signal to its members that homosexuality is unacceptable, and that although none of the organization’s publications mention homosexuality, this message could be derived from the Scout Oath’s injunction to be “morally straight” and the Scout law’s command to be “clean in word and deed.” Further, the BSA advanced a “role model” theory, arguing that having an openly-gay scoutmaster would present a role model to Boy Scout troop members contradictory to the desired message. Further, Rehnquist accepted the BSA’s argument that accepting Dale, an openly-gay person who was the co-president of a gay student organization, as a scoutmaster would significantly burden the organization’s expressive association, embracing without any real analysis or explanation the “contradictory role model” theory. Finally, without any substantive discussion of the state’s justification for burdening expressive association, Rehnquist conclusorily stated that any interests New Jersey sought to advance through its enactment and application of the public accommodations law were outweighed by the significant burden on BSA’s expressive association. Writing for himself and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, Justice John Paul Stevens argued that the Court had adopted an “astounding view of the law” when it held that the BSA was entitled to judicial deference on the issue of defining its expressive association and determining the degree of burden placed upon it by the state. Stevens argued that this approach would severely undermine the application of public accommodation laws by giving a free pass to potential sham expressive associational claims. In this case, he pointed out, at the time Dale was dismissed, the BSA had not publicly articulated any position with respect to homosexuality, and had never sought to instruct its members as to any view of this issue. The sole documentation of BSA policy prior to 1991 was an internal memorandum sent in 1978 by the top scout official to the members of the executive board, and, as Stevens noted, even that document indicated an understanding that if states began to outlaw sexual orientation discrimination, the organization would have to adjust its employment policies accordingly. Stevens found that the documentary record totally supported the New Jersey Supreme Court’s conclusion that far from being a central or unified part of the BSA’s expressive purposes, homosexuality was an invisible issue in the organization, as to which all overt expression seems to have been carefully avoided. Under the circumstances, it was hard to conclude that the BSA’s expressive association would be burdened in any way by having an openly gay man serve as a scoutmaster. Stevens was particularly critical of the majority’s implicit embrace of the idea that an openly-gay person is a virtual political billboard, whose message could be found to be forced on anyone required to associate with him. “The only apparent explanation for the majority’s holding, then, is that homosexuals are simply so different from the rest of society that their presence alone — unlike any other individual’s — should be singled out for special First Amendment treatment. Under the majority’s reasoning, an openly gay male is irreversibly affixed with the label ‘homosexual.’ That label, even though unseen, communicates a message that permits his exclusion wherever Lesbian/Gay Law Notes July/August 2000 113