BOY SCOUTS OF AMERICA V. DALE
In Boy Scouts of America v. Dale, 530 U.S. 640,
120 S.Ct. 2446, 147 L.Ed.2d 554 (U.S. 2000), the
U.S. Supreme Court ruled that a New Jersey
anti-discrimination law that required the Boy
Scouts of America (BSA) to admit an openly gay
man as a scoutmaster violated the Boy Scouts’
FIRST AMENDMENT right of expressive association.
James Dale joined the Cub Scouts in 1978 at
the age of eight. Three years later he became a
Boy Scout and remained one until he turned 18.
By all accounts, Dale was an exemplary scout,
eventually achieving the status of Eagle Scout,
the highest rank to which a scout can aspire. In
1989 Dale applied for adult membership and
was approved. He then served as an assistant
troop scoutmaster in Matawan, New Jersey during
the periods he was not away at Rutgers University
attending college. On August 5, 1990,
Dale received a letter from the Monmouth Scout
Council, informing him that his registration had
been revoked. Registration was a prerequisite for
service as an adult volunteer.
Asked to identify the grounds for the decision,
Monmouth Council Executive James Kay
told Dale that the BSA forbids “membership to
homosexuals.”Kay noted that Dale had been in a
newspaper photograph taken at Rutgers, where
he was co-president of the university’s gay and
lesbian campus organization. The accompanying
newspaper story reported that Dale “admitt[ed]
his homosexuality during his second year at Rutgers.”
According to Kay, Dale had demonstrated
his inability to live by the Scout Oath and Law by
publicly avowing his homosexuality.
Dale filed suit against the BSA in New Jersey
state court, charging that his expulsion as an
assistant scoutmaster violated New Jersey’s Law
Against Discrimination (LAD). N.J.S.A. 10:5-1
et seq. LAD prohibits discrimination based on
several categories, including affectional or sexual
orientation, which encompasses male or female
heterosexuality, homosexuality, or bisexuality.
The suit sought money damages and a court
order reinstating him as assistant scoutmaster.
The trial court dismissed his suit, ruling that
the BSA had consistently excluded any selfdeclared
homosexuals. The court found that
homosexuality, from a Biblical and historical
perspective, was both morally wrong and criminal.
The BSA had implicitly subscribed to this
historical view since its inception, the court said.
The LAD did not apply in Dale’s case because
the BSA was not a place of public accommodation
and because the BSA, as a private association,
could not be compelled to accept a gay
scoutmaster because this would violate the FREEDOM
OF ASSOCIATION guaranteed by the First
Amendment to the U.S. Constitution.
The trial court’s decision was overturned on
appeal by New Jersey Superior Court, which concluded
that the BSA was a “place of public
accommodation” under the LAD. There were
more than 100,000 BSA members in New Jersey
alone, the appeals court said, demonstrating the
public nature of the organization. The New Jersey
Supreme Court affirmed the Superior Court’s
decision in Dale v. Boy Scouts of America, 160 N.J.
562, 734 A.2d 1196 (1999). The court found BSA
had not demonstrated that it was a sufficiently
private organization to warrant constitutional
protection under the freedom of expression and
association guarantees of the First Amendment.
The U.S. Supreme Court disagreed. In a 5–4
opinion written by Chief Justice WILLIAM
REHNQUIST, the Court said that BSA enjoys a
constitutionally protected right of “expressive
association” that would be undermined if the
organization were forced to accept the plaintiff
as an assistant scoutmaster. Describing the Boy
Scouts as a private organization that “believes
homosexual conduct is inconsistent with the
values it seeks to instill in its youth members,”
Rehnquist wrote that “Dale’s presence in the Boy
Scouts would, at the very least, force the organization
to send a message, both to the youth
members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate
form of behavior.”
As a basic principle, Rehnquist stressed, the
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. First, the
Court said that the BSA engages in expressive
activity by seeking to instill values in young people,
and its expressive freedom would be curtailed
if it had to accept avowed homosexuals as
members despite the organization’s policy to the
contrary. Second, Rehnquist stated that the
forced inclusion of an avowed gay rights activist
as an assistant scoutmaster would significantly
affect the Boy Scouts’ ability to advocate public
or private viewpoints, since application of the
LAD in this manner would significantly burden
the organization’s right to oppose or disfavor
homosexual conduct.
In a lengthy and spirited dissent, Justice
JOHN PAUL STEVENS said the Boy Scouts had
offered no evidence that it had any policy on
homosexuality and that the absence of such a
policy meant that the organization’s shared
goals could not be undermined by the acceptance
of gay members and leaders. “The evidence
before this court makes it exceptionally clear
that BSA has, at most, simply adopted an exclusionary
membership policy and has no shared
goal of disapproving of homosexuality,” Stevens
wrote. Stevens also chided the court majority for
what he said was its willingness to simply accept
the BSA’s own claims about the organization’s
views on homosexuality.“Unless one is prepared
to turn the right to associate into a free pass out
of discrimination laws, an independent inquiry
is a necessity,” he wrote.
Rehnquist was joined in the majority opinion
by Justices SANDRA DAY O’CONNOR,
ANTONIN SCALIA, ANTHONY M. KENNEDY, and
CLARENCE THOMAS. Justices DAVID H. SOUTER,
RUTH BADER GINSBURG, and STEPHEN G.
BREYER joined Stevens in the dissent.
The ruling spurred many community organizations
and governments to examine their relationships
with the Boy Scouts. The Episcopal
Diocese of Newark, New Jersey, which has 117
congregations, adopted a resolution deploring
the scout policy. In Montclair, Cub Scout Pack 5
circulated petitions rejecting the BSA’s anti-gay
stance. A Princeton scout troop was denied permission
to use a borough parking lot for its
Christmas tree sale, and numerous companies
and charities, including more than two dozen
local United Ways, cut back or eliminated funding
for the organization. Nonetheless, the BSA
reported that revenues for the national operation
rose from $91 million to $93 million in the
year after the Supreme Court’s decision.
FURTHER READINGS
Lester, Martha L., and Julie Levinson Werner. 2000. “High
Court Deserves No Merit Badge for Boy Scouts of America
v. Dale.” New Jersey Law Journal 161 (July 17).
Powers, Elizabeth A. 2001. Boy Scouts of America v. Dale.
Florida Law Review 53 (April): 399.
Smart, Christopher W. 2001. Boy Scouts of America v. Dale.
Florida Law Review 53 (April): 389.
CROSS-REFERENCES
Discrimination; First Amendment; Freedom of Association
and Assembly; Gay and Lesbian Rights.
