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Boy Scouts of America v. Dale
Decided June 28, 2000, 530 U.S. 640

Forcing the Boy Scouts to admit a homosexual as a scout leader would violate the private organization's right of freedom of association and of "expressive association."



A. Issues Discussed:
Expressive association, discrimination

B. Legal Question Presented:

Does applying New Jersey's public accomodations law to require admitting a homosexual assistant scoutmaster violate the Boy Scouts' First Amendment right of expressive association?


A. Background:

"Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court's Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded.

The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among other rulings, the court 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; 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 distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, on the ground that Dale's reinstatement did not compel the Boy Scouts to express any message."

On certiorari, the US Supreme Court reversed the judgment of the Supreme Court of New Jersey.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side

Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, Jon W. Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W. Haynes, and Lewis H. Robertson.

Briefs of amici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the city of Atlanta et al. by Peter T. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman, Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A. Hutner, and Louise Renne; for the American Association of School Administrators et al. by Mitchell A. Karlan; for the American Bar Association by William G. Paul and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara L. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress by Marc D. Stern; for the American Psychological Association by Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gilfoyle; for the American Public Health Association et al. by Marvin E. Frankel, Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Lawyers for Individual Freedom et al. by Edward W. Swanson and Paula A. Brantner; for Deans of Divinity Schools and Rabbinical Institutions by David A. Schulz; for the National Association for the Advancement of Colored People by Dennis C. Hayes and David T. Goldberg; for Parents, Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Pickering, Daniel H. Squire, and Carol J. Banta; for the Society of American Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool et al. by David M. Gische and Merril Hirsh.

George A. Davidson argued the cause for petitioners. With him on the briefs were Carla A. Kerr, David K. Park, Michael W. McConnell, and Sanford D. Brown.

Briefs of amici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W. Treene; for the California State Club Association et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center by Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family Defense Council et al. by William E. Fay III; for the Family Research Council by Janet M. LaRue; for Gays and Lesbians for Individual Liberty by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individual Rights Foundation by Paul A. Hoffman and Patrick J. Manshardt; for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America by Nathan J. Diament; for the Liberty Legal Institute by Kelly Shackelford and George B. Flint; for the National Catholic Committee on Scouting et al. by Von G. Keetch; for the National Legal Foundation by Barry C. Hodge; for the Pacific Legal Foundation by John H. Findley; for Public Advocate of the United States et al. by William J. Olson and John S. Miles; for the United States Catholic Conference et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for John J. Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.


The Supreme Court held that:

"Applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints.

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms 'morally straight' and 'clean,' and that the organization does not want to promote homosexual conduct as a legitimate form of behavior... Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs.

A state requirement that the Boy Scouts retain Dale 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 freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organization's expression does not justify the State's effort to compel the organization to accept members in derogation of the organization's expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem."

The United States Supreme Court reversed the Supreme Court of New Jersey judgment.

Justice Vote: 4 Pro vs. 5 Con
  • Stevens, J. Pro (Wrote dissenting opinion)
  • Souter, D. Pro (Wrote dissenting opinion)
  • Ginsburg, R. Pro (Joined dissenting opinion)
  • Breyer, S. Pro (Joined dissenting opinion)
  • Rehnquist, W. Con (Wrote majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • Thomas, C. Con (Joined majority opinion)

    The ACLU, as amicus curiae, urged affirmance of the judgment of the Supreme Court of New Jersey; the Supreme Court reversed in a 4-5 vote, giving the ACLU an apparent loss.