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Issue
Whether the First Amendment prohibits state courts from compelling private organizations to place in leadership positions individuals who, by both word and deed, convey messages that are contrary to the moral messages that the organization itself seeks to convey. Specifically, whether the New Jersey courts violated the Boy Scouts’ First Amendment right to expressive association by requiring it to accept homosexual scoutmasters under its Law Against Discrimination LAD.
Facts
The Boy Scouts of America BSA is a youth organization dedicated to instilling civic and moral virtue into boys and young men. The BSA asserted a belief that homosexuality is wrong, just as it asserted a belief that adultery and premarital sex are wrong. James Dale was an assistant scoutmaster in a New Jersey Boy Scout troop. Before and during his time as a scoutmaster he was actively involved in multiple organizations and events advocating rights for homosexuals. At one such event he openly admitted to being homosexual.
Upon reading a newspaper article containing this information, BSA officials recognized the contradictions between the organization’s moral stance and Dale’s behavior and beliefs, and they removed him from his position. They did so arguing that because homosexuality was contrary to their moral views, allowing a homosexual to be a scoutmaster within a troop would disrupt the moral message that the organization was attempting to convey. After being expelled from his position as assistant scoutmaster, Dale sued the BSA, arguing that his expulsion violated New Jersey’s Law Against Discrimination LAD.
The Court Below
The New Jersey Superior Court of Monmouth County was the first to hear the case and granted summary judgment in favor of the BSA. The scoutmaster appealed to the New Jersey Superior Court, Appellate Division, which affirmed in part and reversed in part, ultimately holding that the BSA constituted a “public accommodation” within the LAD and was beholden to the state law. See opinion below:
Dale v. Boy Scouts of America, 308 N.J. Super. 516 N.J., 1998
The BSA then appealed to the Supreme Court of New Jersey, which affirmed the lower court ruling, holding that BSA was a place of “public accommodation” and that it was not exempt from LAD. The BSA violated the LAD, the court held, because it was “not sufficiently personal or private” to warrant constitutional protection under freedom of intimate association. See opinion below:
Dale v. Boy Scouts of America, 160 N.J. 562 N.J., 1999
The BSA then appealed to the Supreme Court of the United States, which reversed the New Jersey Supreme Court. It held that applying the state’s public accommodations law violated the BSA’s First Amendment right of expressive association. See opinion below:
Boy Scouts of America v. Dale, 120 S.Ct. 2446 2000
Question before the Court
“[W]hether applying New Jersey’s public accommodations law in this way violates the Boy Scouts’ First Amendment right of expressive association [?]”
CCJ filed an amicus curiae in support of Boy Scouts of America
Summary:
Forcing the Boy Scouts to admit Dale as an adult leader violated the Boy Scouts’ First Amendment right to freedom of association. It did so because BSA is not a commercial organization; it is a private association. The English jurist William Blackstone indeed noted that public accommodations such as businesses, inns, and eateries have an implied obligation to serve all customers, but the BSA falls outside of this definition. Modern American laws, including the Civil Rights Act of 1964 and California’s Unruh Civil Rights Act, have upheld Blackstone’s position that businesses cannot refuse to serve patrons without “good reason,” yet they have withheld such requirements for private, non-commercial associations.
The BSA is considered a highly intimate private association, thus it is not required by law to be indiscriminately inclusive. Its purpose is to instill certain moral principles in young people, and it has a structure that encourages interpersonal relationships between members and leaders that is surpassed in intimacy virtually only by the family. Because of its intimate nature and its goal of instilling moral virtue, each BSA troop must have the freedom to uphold certain membership criteria. Government interference with the membership of such associations is a direct intrusion upon the liberty of the members of the association, and categorically such intrusions are recognized as unconstitutional by Congress within the purview of the Civil Rights Act of 1964 and in most, if not all, state public accommodations laws.
The BSA’s membership criteria is directly tied to its moral purpose. In expelling Dale, the BSA was not making a claim that homosexuals are less likely to be trustworthy, brave, loyal, and thus less able to serve as role models. The BSA was simply contending that homosexuals are less able to serve as role models because the BSA takes the position that homosexual conduct is immoral, a position that a homosexual would be unable to uphold. The New Jersey Supreme Court’s decision to force a private association to accept a member who holds views about homosexuality contrary to those of the organization contradicts this clear construct, as well as numerous Supreme Court rulings. The decisions in Roberts v. United States Jaycees 1984, Board of Directors of Rotary Intern. v. Rotary Club of Duarte, 1987, and New York State Club Ass’n Inc. v. City of New York 1988 state that if private organizations wish to restrict membership based upon core beliefs and philosophies, they have the right to do so.
Further, undermining the BSA’s mission infringes on the constitutional right of parents to direct the moral upbringing of their children. Many parents choose to place their children in Boy Scouts because of the association’s moral mission. Thus the ruling in the court below undermines the right of parents to direct the moral upbringing of their children. This right is a fundamental right that the Founders believed to be essential. The Supreme Court recognized it as such in the 1923 decision of Meyer v. Nebraska 1923. In accordance with Supreme Court standards, because this is a fundamental right under consideration, government interference with this right is subject to a standard of strict scrutiny and must overcome great legal hurdles to be considered constitutional.
That standard considers the interests of both parties. The BSA has an interest in providing moral training to boys and young men, and state governments have a compelling interest to restrict the BSA’s freedom only when the BSA’s actions would pose a “clear and present danger” to the United States—in other words, its actions would bring about “substantive evils” that Congress has the power to prevent. The BSA poses no such danger. Even if society has a desire to relax its views on homosexuality, state governments have no constitutional grounds by which they can force private associations to affirm the view that homosexuality is morally acceptable. The day that the government regulates what private associations can claim as right and wrong is the day that Americans lose their liberty.
Final Outcome
The Supreme Court agreed with CCJ for the most part and held that requiring “Boy Scouts to admit [Dale] violated Boy Scouts’ First Amendment right of expressive association.” It did so because it significantly affected “the group’s ability to advocate public or private viewpoints.” The court avoided ruling on whether the BSA’s moral stance was right or wrong. It only ruled that the government is unable to interfere with free speech if its purpose is only to promote or disapprove of a message.
