Case Summaries

Dale v. Boy Scouts of America,
___ N.J. ____  (1999)

I. Overview of the Issue

The question presented in the Dale case is a fateful one: are the Boy Scouts of America a “public accommodation” under civil rights laws, and if so, are they protected by the Constitution?

On August 4, 1999, the New Jersey Supreme Court answered yes to the first question, and no to the second. As a result, even given Federal guarantees of freedom of association and speech, the New Jersey Boy Scouts are prohibited from excluding openly homosexual men as Scout leaders.

The majority opinion was written by Chief Justice Poritz and was joined by all seven of the justices on the court. Justice Handler also wrote a lengthy and passionate concurring opinion.

II. Brief History of the Case

James Dale was excluded from the position of Boy Scout leader after the Scouts decided that Dale’s leadership position in the Rutgers Lesbian/Gay Alliance contradicted their views.

The trial court found in favor of the BSA. It concluded that the Scouts’ policy forbids active homosexuals from serving in leadership positions in the organization, and that the BSA was not in violation of the LAD because it was not a “place of public accommodation.” The trial court also held that even if the Scouts were covered by the LAD, the First Amendment protects the BSA from being forced to accept a homosexual leader against its clear policy on sexual morality. The trial court therefore granted summary judgement to the Scouts on all claims. Dale appealed.

The Appellate Division, New Jersey’s intermediate court, reversed the trial court on all counts. To begin with, the court stated that there was no significant relationship between the policy of excluding homosexual leaders and advancing the goals of the BSA. Next it held that the BSA was a “place of public accommodation” under the LAD. Finally, the court held that forcing the BSA to accept homosexual leaders did not violate BSA’s First Amendment freedoms of association or speech. In response to BSA’s claim that the U.S. Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston prevented the state from requiring BSA to accept homosexual leaders, the court held that Hurley involved “pure speech” (a parade) while the acceptance of homosexual scoutmasters by the BSA would not interfere with protected speech.

Both the Boy Scouts and Dale appealed this decision to the New Jersey Supreme Court.

III. The Players: Briefs Submitted and Attorneys Participating in Oral Argument

Briefs (or letters in lieu thereof) were submitted by a large and interesting mix of groups.

On behalf of the Boy Scouts, five briefs were submitted by: the National Catholic Committee on Scouting, with The Church of Jesus Christ of Latter-day Saints, General Commission on United Methodist Men, The United Methodist Church and The Lutheran Church-Missouri Synod; the Claremont Institute for the Study of Statesmanship and Political Philosophy, along with U.S. Representatives Canady, Cannon, Coburn, Peterson, Shadegg and Souder; U.S. Representatives Aderholt, Istook, Hutchison, and Pickering; the Individual Rights Foundation; and the Southeastern Legal Foundation.

On behalf of Plaintiff Dale, five briefs were submitted by: the ACLU of New Jersey and National ACLU; American Public Health Association with Parents, Families and Friends of Lesbians and Gays (PFLAG); the Diocesan Council of the Episcopal Diocese of Newark, Friends Committee on National Legislation, Jewish Reconstructionist Federation, Union of American Hebrew Congregations and Unitarian Universalist Association; the New Jersey Lesbian and Gay Law Association; and the National Association of Social Workers and its New Jersey Chapter.

George Davidson argued for the Boy Scouts; he is their longtime counsel on these issues. Evan Wolfson of Lambda Legal Defense argued for James Dale. Wolson is best-known for his work on behalf of same-sex “marriage,” especially as co-counsel in the landmark Baehr case in Hawai`i.

III. The Supreme Court’s Opinion

The Supreme Court accepted and extended the decision of the Court of Appeals. The opinion goes through a four-step analysis and concludes that the Scouts must accept homosexual leaders..

First, it examines the Scouts’ policies to determine whether the BSA’s prohibition on homosexual Scout leaders is essential to the BSA’s definition of its mission. It concludes it is not.

Second, it considers whether the Boy Scouts are a “public accommodation” subject to the provisions of the State’s Law Against Discrimination (LAD). It answers yes.

Third, it asks whether the Scouts have violated the law by their policy. It answers yes.

Finally, it discusses whether, despite these conclusions, the Boy Scouts may be protected by First Amendment guarantees of freedom of association and speech. It concludes they are not.

Therefore the court concludes that Scouts are required to accept homosexual Scout leaders.

A. Is the Scout’s Policy Essential to Its Organizational Mission?

The most startling (if not Orwellian) feature of the opinion is its discussion of the Boy Scouts. The Court argues that the heart of the Boy Scout’s mission is the promotion of good citizenship, including “tolerance” and “diversity,” and that the Scout’s refusal to accept homosexual leaders (which it calls “its litigation posture”) actually contradicts BSA’s organizational philosophy.

The court reaches this conclusion by the following process of reasoning: (1) the words “morally straight,” in the Scout Oath, have nothing to do with homosexuality; (2) the Boy Scouts discourage discussions of sex, and encourage Scouts to address sexual issues in a family setting; (3) the Boy Scouts have not revoked the charters of Scouting units run by organizations that approve of homosexuality (such as units sponsored by Episcopal churches or Reconstructionist synagogues); and (4) any policy the Scouts claim to have now they have adopted since litigation began. “The self-serving nature of these papers is apparent,” the court confidently asserts.

Obviously, once the court concludes that the rejection of homosexual behavior is irrelevant to the “true” mission of the Boy Scouts, the way is clear for it to further conclude that the forced acceptance of homosexual leaders would have “no significant impact” on the Scouts’ activities.

B. Are the Scouts Covered by the Law Against Discrimination (LAD)?

The Supreme Court states that the purpose of the LAD is to “root out discrimination.” Indeed, it describes this as “a compelling state interest.” Therefore the law should be broadly applied. Application involves two steps: First, is the BSA a “place of public accommodation” under the LAD? Second, even if it is, does it fall under the exemptions explicitly mentioned in the statute?

On the “public accommodation” question, the court holds that a “place of public accommodation” does not have to be a specific location, but can also be a membership organization. Then the court applies a three-part test to decide if the BSA is a “public accommodation”:

(1) Does it “engage in broad public solicitation?” The court notes that BSA does solicit broadly through TV ads and by encouraging its members to wear their uniforms in public. Therefore yes.

(2) Does it have ties to government or other public accommodations? The court notes that government and other public accommodation sponsor Boy Scout troops and provide the Scouts with facilities and other benefits. Therefore yes.

(3) Is it similar to other public accommodations? The court states that the BSA is similar to other public accommodations because it runs camps and provides education. Therefore yes.

The court therefore holds that the BSA was a “place of public accommodation” under the LAD.

BSA, however, claimed that it fell within one or more of the LAD’s three statutory exceptions:

(1) That it is a “distinctly private” organization. The court disagrees. It construes the “distinctly private” exception narrowly, and holds that it did not apply to the BSA because the Scouts are not selective in their membership. The BSA argued that it requires members to abide by the Scout Oath and Law. The court replies that few people were denied membership based on an unwillingness to abide by the requirement.

(2) That it is a religious education facility. The court disagrees. Because the BSA has no specific religious affiliation, the court concludes that the BSA is not a “religious education” facility.

(3) That it is a parent or someone acting in the place of a parent. The court disagrees.

The court holds, therefore, that the BSA does not merit an exemption. It is subject to the LAD.

C. Did the Scouts Violate the LAD?

The Court held that under the LAD, any “privilege” or “advantage” offered to citizens by a “place of public accommodation” must be extended to all, without “sexual orientation” discrimination. By excluding Dale, the BSA has engaged in such discrimination. Thus it has violated the LAD.

D. Does the First Amendment Trump the LAD?

The court then turns to an analysis of whether, given the finding that BSA’s policy violates the LAD, the Federal First Amendment nevertheless provides protection to the BSA. It says no.

The court addresses three different First Amendment claims advanced by the BSA: Freedom of Intimate Association, Freedom of Expressive Association, and Freedom of Speech.

(1) Freedom of Intimate Association. This is the right of a private group to be free of State interference. The court dismisses this argument, holding that the BSA is not a private enough group to be protected, because of its (a) large size, (b) non-selectivity, (c) inclusive purpose, and (d) policy of allowing non-members at meetings.

(2) Freedom of Expressive Association. This is the right of a private group to express its views publicly without State interference. The court also dismisses this claim. It holds that the Scouts’ message is not hindered by forcing it to accept a homosexual leader because, in the court’s words:

A[1] Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; [2] Boy Scouts discourages its leaders from disseminating any views on sexual issues; and [3] Boy Scouts includes sponsors and members who subscribe to different views in respect of homosexuality.”

Specifically, the court rejects BSA’s claim that its teaching that Scouts should be “morally straight” and “clean” expresses a moral objection to homosexual behavior. It reasons that “[t]he words ‘morally straight’ and ‘clean’ do not, on their face, express anything about sexuality, much less that homosexuality, in particular, is immoral.”

The court also contends that the BSA is not concerned with the message that Dale would send as a homosexual leader, but with his status, the mere fact that he is a homosexual. This being the case, the court cannot see any basis for the Scouts’ policy other than prejudice and bigotry.

(3) Freedom of Speech. The BSA argued that, under Hurley, forcing BSA to accept gay leaders would unconstitutionally force the BSA to endorse speech it does not agree with. The court rejects the Hurley analogy. In the court’s view, Dale is not promoting homosexuality. Therefore, if the BSA must accept him as a leader, it is not being forced to endorse any message.

The court concludes that even if forcing the Scouts to accept homosexual Scout leaders constitutes “some slight infringement” on the Scouts’ right of expressive association, this “infringement” must yield to antidiscrimination laws. “It is unquestionable a compelling interest of this State to eliminate the destructive consequences of discrimination from our society.”

E. Justice Handler’s Concurrence

Justice Handler’s concurring opinion offers more theories to bolster the majority’s opinion.

1. BSA’s “unclear” message. Handler argues because the BSA does not disassociate itself from groups who disagree with its policy, its current message on homosexuality is unclear.

2. The Race Analogy. However, to the extent that the Boy Scouts once held such a policy, it is now clearly outdated. It is based on a false and prejudicial stereotype that homosexuality is immoral, just as anti-sodomy laws once expressed prejudice against homosexuality, and anti-miscegenation laws expressed bigotry against interracial marriage. The Scouts are beyond all this.

3. Speech and Status. On the question of First Amendment speech, Handler argues that being a homosexual merges identity and speech. A homosexual must self-identify to indicate status; so Dale’s speech identifying himself as homosexual cannot be separated from his status. While Hurley affirms the proposition that speech may be an acceptable basis for excluding someone from membership in a group (or from a gay pride parade), identity cannot be an acceptable basis.

IV. Conclusion and Next Steps

Since Dale was decided on August 4, it has already been referred to in a subsequent ruling. On August 13, a Cook County, Illinois Circuit Court held that the Boy Scouts could not discourage an employment application from a former Eagle Scout who worked as a dancer at a gay bar. The implications of the case are dramatic, both for nonprofit organizations in New Jersey, and for private groups nationwide.

In the event that same-sex “marriage” is legalized, challenges to marriage statutes in other States will likely invoke their anti-discrimination laws, based on sexual orientation and/or marital status. The more broadly these laws are interpreted, the more endangered marriage laws will become.

Fortunately, the BSA has indicated that it will appeal the ruling to the U.S. Supreme Court. The cert petition should be filed in early October. The response from the plaintiffs will then be due in 30 days after the petition is filed. If certiorari is granted, Dale v. BSA could easily become one of the biggest cases of the 2000 term.

The Claremont Institute <www.claremont.org> has information regarding the case on its website.

Date: August 1999