Boy Scouts of America v. Dale, 530 U.S. 640; 120 S. Ct. 2446; 147 L. Ed. 2d 554 (2000)
Facts—The Monmouth Council of the Boy Scouts of America revoked the adult membership of an assistant scoutmaster, James Dale, a former Eagle Scout, who had announced his homosexuality while in college. Dale had claimed protection of membership under New Jersey’s public accommodation law. A New Jersey Superior Court Chancery Division Court decision classified the Boy Scouts as a private group and upheld the Boy Scouts. Both the New Jersey Superior Court’s Appellate Division and the New Jersey Supreme Court upheld the application of New Jersey’s public accommodation law to the Scouts. The Scouts argued that New Jersey’s law interfered with its expressive freedom under the First Amendment.
Question—Did New Jersey’s public accommodation law interfere with the Boy Scouts’ rights of expressive association under the First Amendment?
Decision—Yes.
Reasons—C.J. Rehnquist (5–4). Pointing to Roberts v. United States Jaycees (1984), Rehnquist noted that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” Rehnquist’s review of Boy Scout values, including those of being “morally straight” and “clean” as well as subsequent statements about homosexual conduct by state leaders, convinced him that the Scouts’ exclusion of avowed homosexuals was essential to the expression of its views. The New Jersey law attempts to widen the notion of “public accommodations,” beyond more physical locations to include regulation of membership in private groups like the Boy Scouts. In so doing, it interferes with the “Scouts’ freedom of expressive association.” The Court is not concerned about whether the view of the Boy Scouts regarding homosexuality is right or wrong, but merely decides that in this case, forcing the group to accept homosexual members “would derogate from the organization’s expressive message.”
J. Stevens and J. Souter dissented. Stevens commended the New Jersey law as an attempt “to replace prejudice with principle.” His review of Boy Scout policies did not convince him that opposition to homosexuality was one of its central purposes, and he thought that statements to that effect were essentially self-serving. He further rejected the idea that Dale’s continuing membership would convey the message that the Scouts endorsed homosexuality. Stevens tied negative views of homosexuals to “atavistic opinions about certain racial groups” and “prejudices.” Souter left open the possibility that a group could be so associated with a point of view opposing homosexuality that a public accommodation law would interfere with its legitimate right of expressive speech, but he did not believe that the Boy Scouts had demonstrated that opposition to homosexuality was one of its own key principles.