ANALYSIS OF BOY SCOUTS OF AMERICA V. DALE, 530 U.S. ___; 120 S.Ct. 2446 (2000)

July 5, 2000

I. Background

In July 1990, James Dale, an assistant Scoutmaster of a New Jersey Boy Scout troop, was featured in a Newark, NJ newspaper discussing the needs homosexual teens have for homosexual role models. In the article, he was identified as a gay activist. He was serving at the time as Co-President of the Rutgers University Lesbian/Gay Alliance. The Boy Scouts subsequently revoked Mr. Dale=s registration as a Scout leader. Not long afterwards, New Jersey adopted an anti-discrimination law which included a prohibition of discrimination based on Asexual orientation@ and Mr. Dale sued the Boy Scouts. The trial court rejected Dale=s claims, holding that the Boy Scouts were not covered by the law and that even if they were, the First Amendment prevented them from being forced to accept a leader violating their own policy. The New Jersey appeals court decided against the Scouts, and on August 4, 1999, the New Jersey Supreme Court also ruled against the Boy Scouts in a unanimous opinion. The court said: A[t]he words >morally straight= and >clean= do not, on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral.@ So the Court concluded that forcing the Scouts to accept homosexual leaders wouldn=t significantly affect the Scouts. The court also held that New Jersey=s interest in preventing discrimination trumps any claim by the Boy Scouts that it should not be forced to implicitly endorse a message it doesn=t agree with.

On April 26, 2000 the U.S. Supreme Court heard arguments in this case and handed down its decision on June 28, 2000.

II. U.S. Supreme Court

The Court reversed the New Jersey Supreme Court=s decision in a 5-4 vote. Chief Justice Rehnquist wrote the majority opinion and was joined by Justices O=Connor, Scalia, Kennedy and Thomas. Justice Stevens wrote a lengthy dissent joined by Justices Souter, Ginsburg and Breyer. Justices Souter also wrote a separate dissent joined by Justices Ginsburg and Breyer.

A. Majority Opinion

The Court=s opinion was based on protecting the Scouts= First Amendment freedom of association (at 5). The Court recognized that the BSA=s clear mission was to instill values and framed its inquiry in terms of deciding whether the application of New Jersey=s anti-discrimination law to the Scouts would significantly effect the Scouts ability to advocate its views (at 7). The Court noted that it is Anot the role of the courts to reject a group=s expressed values because they disagree with those values or find them internally inconsistent@ (at 8). The Court accepted the Scouts= assertion that homosexuality is incompatible with the principles of Scouting and found written evidence of the policy merely Ainstructive@ since the assertion was dispositive (at 9). The Court noted that because Dale was a prominent Agay rights activist,@ his presence in the Scouts would force the organization to send a message that Ahomosexual conduct [is] a legitimate form of behavior@ (at 11). The Court disagreed with the New Jersey Supreme Court=s finding that the BSA=s ability to disseminate its message was not significantly affected by Dale=s inclusion because (1) excluding homosexuals is not the Apurpose@ of Scouting, (2) the Scouts discourage any discussion of sexuality by Scoutmasters, and (3) BSA includes sponsors who do not consider homosexuality immoral (at 12). The Court responded to all of these contentions in turn by holding that: (1) exclusion does not need to be the Apurpose@ of the association for it to exclude those who interfere with its message, (2) silence on sexuality is not dispositive because the Scouts are free to choose the means of dissemination of their message and they have chosen the example of Scout leaders, and (3) the membership of some who disagree with a group=s policy is irrelevant to whether there is such a policy (at 12-13).

The Court=s opinion also noted that the New Jersey Supreme Court=s construction of the anti-discrimination law=s requirement of a Apublic accommodation@ had created the First Amendment conflict in this case (at 15). In response to Justice Stevens= dissent, the Court noted that the popularity of an organization=s mission is not the test for determining whether it has a constitutional right of freedom of association. The opinion also took issue with Justice Stevens= invocation of Justice Brandeis= fondness for experimentation by states by pointing out that AJustice Brandeis was never a champion of state experimentation in the suppression of free speech@ (at 18).

B. Justice Stevens= Dissent

Justice Stevens began his dissent with a paean to state experimentation in social issues and praised New Jersey as Acourageous@ (at 3). Justice Stevens argued that the Boy Scouts claim required the court to look at the values taught by the BSA (at 4). After a perfunctory analysis of some BSA materials (reflecting very closely the characterization of these materials urged by plaintiffs), Justice Stevens= concluded that it was Aplain as the light of day@ that the Scout principles regarding being Amorally straight@ and Aclean@ say nothing about homosexuality (at 7). In this connection, he makes much of the religious groups who approve of homosexuality (at 9). Justice Stevens finds faults with BSA policy statements, the first because it was equivocal and the others because they were released after the Dale had been separated from the Scouts (at 12). Justice Stevens argues that the Court has never held that a group=s exclusionary policy trumps an anti-discrimination law (at 18) and analogizes this case to the Jaycees and Rotary cases which provided no constitutional protection to these groups= exclusion of women (at 19). Justice Steven=s statement of the relevant First Amendment test would be Awhether the mere inclusion of the person at issue would >impose any serious burden,= >affect in any significant way,= or be >a substantial restraint upon= the organization=s >shared goals,= >basic goals,= or >collective effort to foster beliefs=@ (at 22-23). Here, Justice Stevens found no Ashared goal of disapproving of homosexuality@ based on the evidence he had already discussed (at 23). He argue that the Court should have looked beyond BSA=s assertion of their policy to see if the message actually exists (at 25). Justice Stevens felt that the majority=s opinion could threaten to moot all civil rights laws 9at 26). He also argued that BSA=s right of expressive association would only allow them to prevent Dale from speaking in favor of homosexuality, not from being a member (at 28). He also argued that this case was different from Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which allowed parade organizers to prevent a Agay@ group from marching in a St. Patrick=s parade (at 33). The basis for this distinction was Justice Stevens= belief that Dale=s participation in Scouts doesn=t send a message (at 34 and 37). He admitted, though, that there might be a hypothetical situation where a person might be so public that their participation might send a message, but argued that that wasn=t the case here (at 34, note 21).

Justice Stevens also made the remarkable charge that the Court=s justification for allowing the Scouts to exclude Dale Ais tantamount to a constitutionally prescribed symbol of inferiority@ (at 35-36). He concluded his opinion by noting that other groups have changed their view of homosexuality and accusing the Boy Scouts of increasing the harm caused by anti-homosexual prejudice (39-40).

C. Justice Souter=s Dissent

Justice Souter=s wrote separately to make clear that he (and those who joined him) did not feel that the societal change in thinking about homosexuality is not dispositive to the case, agreeing with the majority that the popularity of beliefs is not the test for a right of freedom of association (at 1-2). In Justice Souter=s opinion, the Scouts had not been explicit about their message in regards to homosexuality, so they had not First Amendment claim that their message was being interfered with (at 2). Justice Souter did accept, though, the possibility of Justice Stevens= hypothetical of a case where a person is so identified with a position that they epitomize it (at 2).

III. Reaction to the Ruling

In reaction to the ruling, different groups expressed varying opinions as to the implications of the decision. The Claremont Institute, which had filed an amicus brief in support of the Scouts, focused on the fact that Scout policy could remain the same. The Church of Jesus Christ of Latter-day Saints, a major supporter of Scouting also focused on the fact that the ruling ensured BSA=s ability to determine membership and leadership policies. The Family Research Council expressed its understanding that Aevery@ private association will now be free from attempts to make it conform to a government-approved pattern.

The Lambda Legal Defense and Education Fund, which had represented James Dale struck the main theme of opponents of the decisionBthat the decision brands BSA as a discriminatory organization and predicted schools and parents will now leave. The Lambda press release also focused on an issue not addressed in the case, Agay youth@ arguing that they are no longer welcome in the Scouts. The ACLU argued that the effect of the decision is limited to groups Awhich teach values.@ The National Lesbian and Gay Task Force seemed to agree, arguing that the decision only encompasses groups which have an Aanti-gay@ mission. The Human Rights Campaign saw larger implications charging that the decision could allow other groups to evade state anti-discrimination laws.

IV. Analysis of Opinions

There are three ways to analyze the opinions in this case: (1) how they evaluate the facts, (2) what test each would use to establish a claim of associational freedom, and (3) their views of sexuality.

A. Evaluation of Facts

The majority opinion gives great deference to the organization asserting a claim of associational freedom. So, its evaluation would seem to include a determination of that the organization has a message it is trying to communicate (this can be satisfied by the assertion of the message by the organization) and a determination that forced inclusion of the challenging individual would blur the organization=s message (again, the majority=s approach is very deferential, allowing the organization to determine how it will send its message out).

Stevens= dissent is much more stringent. He would place the onus on the court to determine if a message requiring exclusion is involved and would assume that the mere presence of a non-conforming individual would not threaten the organization=s message.

Justice Souter would require the organization to have engaged in Aunequivocal advocacy@ on the matter at issue Ausing the channels it customarily employs to state its message@ (at 2).

B. Test for Claim

The majority=s test for whether an organization has stated a claim of associational freedom is whether a group has a message and whether the excluded individual would interfere with the organization=s chosen means of disseminating the message.

Stevens= dissent requires a clear message that is part of the Ashared goal@ of the group and a showing that the individual participating is so identified with a contrary message that their mere presence epitomizes a message that contradicts that of the organization.

Justice Souter=s opinion accepts Justice Stevens= standard, but underscores the requirement that the message be explicit and consistent over time.

C. Normative Views on Sexuality

The majority does not seem to rely on any particular normative view of sexuality, but is very deferential to the Scouts= view. Justice Stevens= dissent, on the other hand, is vociferous in its attack on the Scouts view, insinuating that it is outdated because it is being abandoned by so many groups and individuals. His opinion is so strongly stated, that Justice Souter=s dissent expressly disavows approval of Justice Stevens= opinion about the merits of the Boy Scouts= view of the morality of homosexuality.

D. Implications

This analysis suggests a number of things, all of which are brought to the fore by recent developments in Vermont, where the Legislature=s decision to create a quasi-marital status for same-sex couples includes a provision that disparate treatment predicated on a couple=s involvement in a same-sex Acivil union@ will constitute both Amarital status@ and Asexual orientation@ discrimination.

First, if the majority approach prevails, organizations will likely only have to assert that they have a position on a subject and that their dissemination of that opinion would be interfered with by inclusion of a person whose presence sends a different message. Neither assertion would be subject to significant scrutiny. The same test would seem to apply if the other opinions were controlling, but the standard of proof would be much higher. Presumably, a group would have to show that its opinion is central to its mission, that its views are widely and loudly disseminated (such as in an official handbook that is widely available) and that the person challenging exclusion was so clearly identified with an opposing position that their mere inclusion would send confuse the message sent by the group. This is an exceedingly strict test.

Second, the dissenting justices would seem to require that the message be central to the group=s purpose and that the individual being excluded has become so identified with a contradicting message that their mere presence would make the group=s message less clear. The majority, on the other hand does not require that the message be central to the group=s purpose and allows the group to decide whether an individual=s participation interferes with its communication of the message.

Finally, the opinions of all but one judge seem to disclaim any concern for the substantive of the message the group is sending about sexuality (although, one wonders if the substantive position is still important, given the Court=s penchant for punishing pro-life speech, for instance). At least one justice, though, seems to believe that certain traditional views of sexual morality are inherently suspect.