Boy Scouts of America v. Dale
Encyclopedia
Boy Scouts of America et al. v. Dale, , was a case of the Supreme Court of the United States
overturning the New Jersey Supreme Court
's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America
(BSA) to readmit assistant Scoutmaster James Dale. When he was a student at Rutgers University
, Dale became copresident of the Lesbian/Gay student alliance. Then, in July 1990, he attended a seminar on the health needs of lesbian and gay teenagers. During the seminar, he was interviewed, and the work was subsequently published. He was expelled from Scouting
after BSA officials read the interview in a local newspaper and Dale was quoted as stating he was gay. The Supreme Court held that the lower court's decision unconstitutionally violated the rights of BSA, specifically the freedom of association
, which allows a private organization to exclude a person from membership when "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." The court ruled that opposition to homosexuality is part of BSA's "expressive message", and allowing homosexuals as adult leaders would interfere with that message. The case was argued on April 26, 2000 and was decided on June 28, 2000.
Dale, an Eagle Scout
, filed suit in the New Jersey Superior Court
, alleging, among other things, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation
in places of public accommodation. The case went to the New Jersey Supreme Court
which ruled against the Boy Scouts, saying that they violated the State's public accommodations law by revoking Dale's membership based on his homosexuality. Among other rulings, the court (1) 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; (2) 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 (3) held that Dale's reinstatement did not compel the Boy Scouts to express any message.
The Boy Scouts appealed to the United States Supreme Court, which granted certiorari
to determine whether the application of New Jersey's public accommodations law violated the First Amendment.
Dale was represented by Evan Wolfson
, an attorney and noted gay/lesbian rights advocate. In addition to representing Dale, Wolfson has also worked on a number of high profile cases seeking legal recognition of same-sex marriages. Also representing Dale on a pro bono basis was the New York-based law firm Cleary Gottlieb Steen & Hamilton.
The Boy Scouts of America were represented by attorney George Davidson
, a partner in the New York-based law firm Hughes Hubbard & Reed
. Davidson is a former President of the Legal Aid Society
and current chair of the Federal Defenders
of New York.
Chief Justice
William Rehnquist
wrote the majority opinion. It relied heavily upon an earlier case, Roberts v. United States Jaycees
, 468 U.S. 609, 622 (1984). In that decision the Supreme Court said: "Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right, the Roberts decision continues, is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "freedom of association ... plainly presupposes a freedom not to associate."
However, to determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." After reviewing the Scout Promise
and Scout Law
the court decided that the general mission of the Boy Scouts is clear: "[T]o instill values in young people." The Boy Scouts seek to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping
, fishing
, etc. During the time spent with the youth members, the Scoutmasters and assistant Scoutmasters inculcate them with the Boy Scouts' values—both expressly and by example. An association that seeks to transmit such a system of values engages in expressive activity.
Finally, the decision concludes:
Justice Stevens
dissented from the Court's decision in an opinion that Justices Souter
, Ginsburg
, and Breyer
joined. He first observed that "every state law prohibiting discrimination is designed to replace prejudice with principle." Justice Brandeis
had observed in New State Ice Company v. Liebman that it "is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." In Stevens' opinion, the Court's decision interfered with New Jersey's experiment.
However, Justice Stevens' first point was that the Boy Scouts' ban on gay members hardly followed from its founding principles. The Boy Scouts sought to instill "values" in young people, "to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and the Scout Law, which set forth the Scouts' central tenets, assist in this goal. One of these tenets is that a Scout is "morally straight." Another is that a Scout is "clean." As these terms were defined in the Scout Handbook, Justice Stevens said, "it is plain as the light of day that neither one of these principles—'morally straight' and 'clean'—says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts' Law and Oath expresses any position whatsoever on sexual matters."
What guidance the Boy Scouts gave to the adult leaders that have direct contact with the Scouts themselves urged those leaders to avoid discussing sexual matters. "Scouts... are directed to receive their sex education at home or in school, but not from the organization." Scoutmasters, in turn, are told to direct "curious adolescents" to their family, religious leaders, doctors, or other professionals. The Boy Scouts had gone so far as to devise specific guidelines for Scoutmasters:
Justice Stevens ended his dissent by noting that serious and "ancient" prejudices facing homosexuals
could be aggravated by the "creation of a constitutional shield."
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
overturning the New Jersey Supreme Court
New Jersey Supreme Court
The New Jersey Supreme Court is the highest court in the U.S. state of New Jersey. It has existed in three different forms under the three different state constitutions since the independence of the state in 1776...
's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America
Boy Scouts of America
The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
(BSA) to readmit assistant Scoutmaster James Dale. When he was a student at Rutgers University
Rutgers University
Rutgers, The State University of New Jersey , is the largest institution for higher education in New Jersey, United States. It was originally chartered as Queen's College in 1766. It is the eighth-oldest college in the United States and one of the nine Colonial colleges founded before the American...
, Dale became copresident of the Lesbian/Gay student alliance. Then, in July 1990, he attended a seminar on the health needs of lesbian and gay teenagers. During the seminar, he was interviewed, and the work was subsequently published. He was expelled from Scouting
Scouting
Scouting, also known as the Scout Movement, is a worldwide youth movement with the stated aim of supporting young people in their physical, mental and spiritual development, that they may play constructive roles in society....
after BSA officials read the interview in a local newspaper and Dale was quoted as stating he was gay. The Supreme Court held that the lower court's decision unconstitutionally violated the rights of BSA, specifically the freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
, which allows a private organization to exclude a person from membership when "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." The court ruled that opposition to homosexuality is part of BSA's "expressive message", and allowing homosexuals as adult leaders would interfere with that message. The case was argued on April 26, 2000 and was decided on June 28, 2000.
Background
The Boy Scouts of America is a private, non-profit organization engaged in instilling its system of values in young people. It asserts that homosexuality is inconsistent with those values. James Dale is an adult whose position as assistant Scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is openly gay and a gay rights activist.Dale, an Eagle Scout
Eagle Scout (Boy Scouts of America)
Eagle Scout is the highest rank attainable in the Boy Scouting program of the Boy Scouts of America . A Scout who attains this rank is called an Eagle Scout or Eagle. Since its introduction in 1911, the Eagle Scout rank has been earned by more than 2 million young men...
, filed suit in the New Jersey Superior Court
New Jersey Superior Court
The Superior Court is the state court in the U.S. state of New Jersey, with state-wide trial and appellate jurisdiction. The Superior Court has three divisions: the Appellate Division is essentially an intermediate appellate court while the Law and Chancery Divisions function as trial courts...
, alleging, among other things, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
in places of public accommodation. The case went to the New Jersey Supreme Court
New Jersey Supreme Court
The New Jersey Supreme Court is the highest court in the U.S. state of New Jersey. It has existed in three different forms under the three different state constitutions since the independence of the state in 1776...
which ruled against the Boy Scouts, saying that they violated the State's public accommodations law by revoking Dale's membership based on his homosexuality. Among other rulings, the court (1) held that application of that law did not violate the Boy Scouts' First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
right of expressive association because Dale's inclusion would not significantly affect members' ability to carry out their purposes; (2) 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 (3) held that Dale's reinstatement did not compel the Boy Scouts to express any message.
The Boy Scouts appealed to the United States Supreme Court, which granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to determine whether the application of New Jersey's public accommodations law violated the First Amendment.
Counsel
Evan Wolfson
Evan Wolfson is an American civil rights attorney and advocate. He is founder and executive director of Freedom to Marry, a group favoring same-sex marriage in the United States...
, an attorney and noted gay/lesbian rights advocate. In addition to representing Dale, Wolfson has also worked on a number of high profile cases seeking legal recognition of same-sex marriages. Also representing Dale on a pro bono basis was the New York-based law firm Cleary Gottlieb Steen & Hamilton.
The Boy Scouts of America were represented by attorney George Davidson
George Davidson (attorney)
George Allan Davidson is an attorney and head of the Litigation Department of the New York law firm Hughes Hubbard & Reed.Davidson is the former President of the Legal Aid Society, a position he held from 1987-1989...
, a partner in the New York-based law firm Hughes Hubbard & Reed
Hughes Hubbard & Reed
Hughes Hubbard & Reed LLP , founded in 1888, is a law firm headquartered in New York City.The firm's history dates back to the late 19th century when it counted among its partners former Chief Justice of the United States Charles Evans Hughes.Hughes Hubbard was recently ranked first among law firms...
. Davidson is a former President of the Legal Aid Society
Legal Aid Society
The Legal Aid Society in New York City is the United States' oldest and largest provider of legal services to the indigent. It operates both traditional civil and criminal law cases.-History:...
and current chair of the Federal Defenders
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
of New York.
Majority opinion
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
wrote the majority opinion. It relied heavily upon an earlier case, Roberts v. United States Jaycees
Roberts v. United States Jaycees
Roberts v. United States Jaycees, , was an opinion of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law, which had permitted the United States Junior Chamber to exclude women from full...
, 468 U.S. 609, 622 (1984). In that decision the Supreme Court said: "Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right, the Roberts decision continues, is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "freedom of association ... plainly presupposes a freedom not to associate."
However, to determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." After reviewing the Scout Promise
Scout Promise
Since the publication of Scouting for Boys in 1908, all Scouts and Guides around the world have taken a Scout promise or oath to live up to ideals of the movement, and subscribed to a Scout Law. The wording of the Scout Promise and Scout Law have varied slightly over time and from country to...
and Scout Law
Scout Law
Since the publication of Scouting for Boys in 1908, all Scouts and Guides around the world have taken a Scout Promise or oath to live up to ideals of the movement, and subscribed to a Scout Law...
the court decided that the general mission of the Boy Scouts is clear: "[T]o instill values in young people." The Boy Scouts seek to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping
Camping
Camping is an outdoor recreational activity. The participants leave urban areas, their home region, or civilization and enjoy nature while spending one or several nights outdoors, usually at a campsite. Camping may involve the use of a tent, caravan, motorhome, cabin, a primitive structure, or no...
, fishing
Fishing
Fishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping....
, etc. During the time spent with the youth members, the Scoutmasters and assistant Scoutmasters inculcate them with the Boy Scouts' values—both expressly and by example. An association that seeks to transmit such a system of values engages in expressive activity.
- First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.
- Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexualityHuman sexualityHuman sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
and teach only by example, this fact does not negate the sincerity of its belief discussed above. - Regarding whether the Boy Scouts as a whole had an expressive policy against homosexuality, the Court gave deference to the organization's own assertions of the nature of its expressions, as well as what would impair them. The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," and that it does "not want to promote homosexual conduct as a legitimate form of behavior," While the policy may not represent the views of all Boy Scouts, the First Amendment "does not require that every member of a group agree on every issue in order for the group's policy to be expressive association." The Court deemed it sufficient that the Boy Scouts had taken an official position with respect to same-sex relationships. The presence of an openly gay activist in an assistant Scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant Scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.
Finally, the decision concludes:
We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. 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 than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.
Dissenting opinion
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
dissented from the Court's decision in an opinion that Justices Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, and Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
joined. He first observed that "every state law prohibiting discrimination is designed to replace prejudice with principle." Justice Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
had observed in New State Ice Company v. Liebman that it "is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." In Stevens' opinion, the Court's decision interfered with New Jersey's experiment.
However, Justice Stevens' first point was that the Boy Scouts' ban on gay members hardly followed from its founding principles. The Boy Scouts sought to instill "values" in young people, "to prepare them to make ethical choices over their lifetime in achieving their full potential." The Scout Oath and the Scout Law, which set forth the Scouts' central tenets, assist in this goal. One of these tenets is that a Scout is "morally straight." Another is that a Scout is "clean." As these terms were defined in the Scout Handbook, Justice Stevens said, "it is plain as the light of day that neither one of these principles—'morally straight' and 'clean'—says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts' Law and Oath expresses any position whatsoever on sexual matters."
What guidance the Boy Scouts gave to the adult leaders that have direct contact with the Scouts themselves urged those leaders to avoid discussing sexual matters. "Scouts... are directed to receive their sex education at home or in school, but not from the organization." Scoutmasters, in turn, are told to direct "curious adolescents" to their family, religious leaders, doctors, or other professionals. The Boy Scouts had gone so far as to devise specific guidelines for Scoutmasters:
- Do not advise Scouts about sexual matters, because it is outside the expertise and comfort level of most Scoutmasters.
- If a Scout brings specific questions to his Scoutmaster, the Scoutmaster should answer within his comfort level, remembering that a "boy who appears to be asking about sexual intercourse... may really only be worried about pimples".
- Boys with "sexual problems" should be referred to an appropriate professional.
Justice Stevens ended his dissent by noting that serious and "ancient" prejudices facing homosexuals
Homophobia
Homophobia is a term used to refer to a range of negative attitudes and feelings towards lesbian, gay and in some cases bisexual, transgender people and behavior, although these are usually covered under other terms such as biphobia and transphobia. Definitions refer to irrational fear, with the...
could be aggravated by the "creation of a constitutional shield."
If we would guide by the light of reason, we must let our minds be bold.
See also
- Boy Scouts of America position on homosexuals
- Freedom of associationFreedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
- National Association for the Advancement of Colored People v. Alabama
- Roberts v. United States JayceesRoberts v. United States JayceesRoberts v. United States Jaycees, , was an opinion of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law, which had permitted the United States Junior Chamber to exclude women from full...
- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of BostonHurley v. Irish-American Gay, Lesbian, and Bisexual Group of BostonHurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 , is a landmark decision of the Supreme Court of the United States regarding the right to assemble and for groups to determine what message is actually conveyed to the public...
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- List of United States Supreme Court cases, volume 530
- List of United States Supreme Court cases by the Rehnquist Court