Boy Scouts of America v. Dale - Opinion Announcement

Argument of Chief Justice Rehnquist

Mr. Rehnquist: I have the opinion of the Court to announce in No. 99-699. the Boy Scouts of America versus Dale.

The Boy Scouts of America and its Monmouth County New Jersey Council are the petitioners here.

I will refer to them collectively as the Boy Scouts.

The Boy Scouts is a private not-for-profit organization engaged in instilling its system of values in young boys.

James Dale is the respondent.

Dale entered scouting at age eight and remained as scout until age 18.

By all accounts, he was an exemplary youth member and attained the rank of Eagle Scout.

In 1989, he applied for adult membership in the Boy Scouts and was accepted as an assistant scoutmaster.

Shortly thereafter he left home to attend college at Rutgers University.

While at Rutgers he first acknowledged to himself and others that he is gay.

He quickly became involved with, and eventually became the co-president of, the Rutgers University Lesbian Gay Alliance.

In 1990, he attended a seminar addressing the needs of gay teenagers.

A newspaper covering the event published an interview with Dale, that addressed his advocacy of role models for gay teenagers.

The article included a picture of Dale that identified him as the co-president of the Lesbian Gay Alliance.

The Boy Scouts saw the article and revoked Dale’s adult membership.

He filed a complaint in the New Jersey Superior Court alleging the Boy Scouts had violated New Jersey's Public Accommodations Law, which prohibits sexual orientation based exclusion from places of public accommodation.

That Court's Chancery Division granted summary judgment in favor of the Boy Scouts holding that the Boy Scouts was not a place of public accommodation for the purposes of the New Jersey law.

The New Jersey Appellate Division reversed holding that the public accommodations law did apply to the Boy Scouts and the law required the Boy Scouts to readmit Dale.

The New Jersey Supreme Court affirmed the judgment of the Appellate Division.

The New Jersey Supreme Court rejected the Boy Scouts’ claim enforcing it to admit Dale would violated its First Amendment right of expressive association.

We reverse the judgment of the New Jersey Supreme Court and hold that the application of New Jersey’s public accommodations’ law in this case violates the Boys Scouts First Amendment rights.

In Roberts v. Jaycees we observed that implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.

We deem this right to be the right of expressive association.

The expressive associational right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.

In Roberts we stated that one of the ways the government may burden this freedom is by forcing the group to accept a member it does not desire.

In order to decide whether enforcing the Boy Scouts to accept Dale violates the group’s First Amendment rights to expressive association we must make several inquiries.

First, we must determine whether the Boy Scouts engage in expressive association sufficient to give them First Amendment protection.

It is clear from the record that the mission of the Boy Scouts is to instill a system of values in young boys.

It seems indisputable that this is expressive activity entitling the Boy Scouts to First Amendment protection.

Next we must determine whether the Boy Scouts express a view about homosexuality.

The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill and that it and "teaches that homosexual conduct is not morally straight and does not want to promote homosexual conduct as a legitimate form of behavior".

We must accept the Boy Scouts’ assertions as to these matters because they are undoubtedly sincerely held.

In 1978 a position statement under the Boy Scouts’ Executive Committee, signed by the President of the Boy Scouts, and the Chief Scout Executive made a statement to that effect.

It was revised many times through the year but its core message remained consistent.

The 1991 position statement stated that homosexual conduct was inconsistent with scouting values.

The same is true of a 1993 position statement.

Even more supportive of the sincerity of the Boy Scouts view is the fact that the organization has bee litigating this position for almost 20 years beginning in a case which arose in California in the early 1980s.

In light of the record we cannot doubt the sincerity of the Boy Scouts’ view.

Next, we must determine whether Dale’s presence in the Boy Scouts would significantly burden the organizations’ message.

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.

Dale was a co-president of a gay and lesbian organization at college and remains a gay rights activist.

We conclude that his presence would force the Boy Scouts to send a message it does not desire to send that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.

Finally, having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect the organization’s expression, we must inquire whether the First Amendment has been violated?

In making this inquiry we place the associational interest in the freedom of expressive association on this one side of the scale, and the State’s interest on the other.

And in balancing the competing considerations we conclude that the state interest embodied New Jersey’s public accommodations law do not outweigh the severe intrusion on the Boy Scouts' rights to freedom of expressive association.

Justice Stevens' dissent observes that homosexuality is gaining greater social acceptance, but this is scarcely an argument for denying First Amendment protection to those who do not accept these views.

The First Amendment protects expression, be it of the popular variety or not.

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.

We are not guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong.

As we said in our decision in Hurley several terms ago, “While the law is free to promote all sorts of conduct in place of harmful behavior it is not free to interfere with speech for no better reason in promoting an approved message or discouraging a disfavored one".

However, enlightened either purpose may strike the government.

Justice Stevens has filed a dissenting opinion in which Justice Souter, Justice Ginsburg and Justice Breyer join; Justice Souter has filed a dissenting opinion in which Justice Ginsburg and Justice Breyer join.