Issue
May Connecticut exact a price for abiding by constitutionally protected principles by excluding the Boy Scouts from a generally available government subsidy unless they surrender their principles and abandon policies that express those principles?
Facts
Connecticut has expelled the Boy Scouts from a state charity fundraising program, while allowing hundreds of other nonprofit organizations to continue in the program, because of Scout leader-selection criteria that is expressive in nature. The Scouts have been ousted because they embrace, and organize themselves in accordance with, convictions that state officials do not find acceptable. Specifically, the BSA has a policy whereby it will not hire openly gay adult leaders. As a result of being excluded, the BSA sued arguing that excluding them is a violation of their First Amendment right to association.
CCJ filed an amicus curiae brief in support of the Boy Scouts of America
Summary:
In Dale v. Boy Scouts of America 2000, this Court recognized three things. First, the Boy Scouts of America is an expressive organization. Second, the criteria for selecting volunteer adult Scout leaders reflect core Scouting beliefs. Third, the First Amendment bars government from compelling the BSA to depart from their beliefs by abandoning their traditional selection criteria for adult leaders.
The question raised by this case follows naturally from that in Dale: If government may not force the Scouts to abandon their principles, may it penalize or discriminate against the Scouts because of those principles? The precedents of this Court answer, unambiguously, no. The ruling below answered yes. Therefore, the Court should take the case to right the improper ruling of the lower court.
As the BSA points out, Rosenberger v. Rector and Visitors of University of Virginia 1995 and its progeny cases bar government from excluding an otherwise-qualified expressive group from a government program on the basis of viewpoint. This criteria fits the BSA because they have met the requisites for the fundraiser in the past and have even been awarded money.
Even when a law is neutral in its wording, its application has been blocked when it would infringe on the First Amendment. For instance, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston 1995, prohibited the application of a public accommodations law that conditioned a permit for a Saint Patrick’s Day Parade on the organizers’ agreement to admit a gay and lesbian unit into the procession. The Court recognized that the law in question did not target expression and was, itself, content-neutral. As applied, however, the law infringed on the expressive freedoms of the parade organizers, who objected to including a gay and lesbian message. The BSA is in a very similar situation in this case. They are being told to accept gay adult leaders, contrary to their beliefs, or forfeit any potential fundraiser money. This flies in the face of both Rosenberger and Hurley.
The ultimate victims of these ideologically inspired crusades are the boys who will be denied opportunities because of lost funding. Government attacks on the Scouts are not just destructive in terms of policy, however. Making the Scouts pay a price for exercising their First Amendment rights is also unconstitutional. The fact that this assault on civil liberties is not limited to Connecticut underscores the case for granting the Boy Scouts’ petition.
The First Amendment trumps any state effort to subject free speech and association rights to legal disabilities. Because the district and appellate courts failed to acknowledge this fact, amici respectfully request that this Court grant a writ of certiorari.
Final Outcome
The Supreme Court declined to hear this case and the controlling decision thus fell to the Court of Appeals for the Second Circuit. That court ruled that including the BSA councils in the Connecticut fundraiser would be a violation of the state’s Gay Rights Law. This ruling is inconsistent with CCJ’s position on the matter.
