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\deflang1033\pard\plain\f3\fs28\cf0\b BOY SCOUTS OF AMERICA v. DALE (99-699)
\par \plain\f3\fs28\cf0 160 N. J. 562, 734 A. 2d 1196, reversed and remanded.\plain\f3\fs22
\par
\par 5-4 vote
\par
\par Rehnquist, C. J., delivered the opinion of the Court, in which O\rquote Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined.
\par
\par From Renquist
\par
\par Dale applied for adult membership in the Boy Scouts in
\par 1989. The Boy Scouts approved his application for the
\par position of assistant scoutmaster of Troop 73. Around the
\par same time, Dale left home to attend Rutgers University.
\par After arriving at Rutgers, Dale first acknowledged to
\par himself and others that he is gay. He quickly became
\par involved with, and eventually became the copresident of,
\par the Rutgers University Lesbian/Gay Alliance. In 1990,
\par Dale attended a seminar addressing the psychological and
\par health needs of lesbian and gay teenagers. A newspaper
\par covering the event interviewed Dale about \plain\f3\fs22\b his advocacy of
\par homosexual teenagers\rquote need for gay role models. \plain\f3\fs22 In early
\par July 1990, the newspaper published the interview and
\par Dale\rquote s photograph over a caption identifying him as the
\par copresident of the Lesbian/Gay Alliance.
\par
\par \plain\f3\fs22\b The New Jersey Superior Court\plain\f3\fs22 \rquote s Chancery Division
\par \plain\f3\fs22\b granted summary judgment \plain\f3\fs22\b\ul in favor of the Boy Scouts\plain\f3\fs22 .
\par
\par The court held that New Jersey\rquote s public accommodations
\par law was inapplicable because the Boy Scouts was not a
\par place of public accommodation, and that, alternatively, the
\par Boy Scouts is a distinctly private group exempted from
\par coverage under New Jersey\rquote s law.
\par The court
\par also concluded that the Boy Scouts\rquote position in respect of
\par active homosexuality was clear and held that the \plain\f3\fs22\ul First
\par Amendment freedom of expressive association prevented
\par the government from forcing the Boy Scouts to accept Dale
\par as an adult leader.
\par \plain\f3\fs22
\par Government actions
\par that may unconstitutionally burden this freedom may take
\par many forms, one of which is \ldblquote intrusion into the internal
\par structure or affairs of an association\rdblquote like a \ldblquote regulation
\par that forces the group to accept members it does not de-sire.\rdblquote
\par Id., at 623. Forcing a group to accept certain mem-bers
\par may impair the ability of the group to express those
\par views, and only those views, that it intends to express.
\par \plain\f3\fs22\b Thus, \ldblquote [f ]reedom of association . . . plainly presupposes a
\par freedom not to associate.\rdblquote
\par \plain\f3\fs22
\par \ldblquote It is the mission of the Boy Scouts of America to
\par serve others by helping to instill values in young peo-ple
\par and, in other ways, to prepare them to make ethi-cal
\par choices over their lifetime in achieving their full
\par potential.
\par \ldblquote The values we strive to instill are based on those
\par found in the Scout Oath and Law:
\par \pard\qc\plain\f3\fs22 \ldblquote \plain\f3\fs24\b\ul Scout Oath\plain\f3\fs22
\par \pard\plain\f3\fs22
\par \pard\qc\plain\f3\fs22 \ldblquote On my honor I will do my best
\par To do my duty to God and my country
\par and to obey the Scout Law;
\par To help other people at all times;
\par To keep myself physically strong,
\par mentally awake, and morally straight.
\par \pard\plain\f3\fs22
\par \pard\qc\plain\f3\fs22 \ldblquote \plain\f3\fs24\b\ul Scout Law\plain\f3\fs22
\par \ldblquote A Scout is:
\par \ldblquote Trustworthy \tab Obedient
\par Loyal \tab \tab Cheerful
\par Helpful \tab \tab Thrifty
\par Friendly \tab Brave
\par Courteous \tab Clean
\par Kind \tab \tab Reverent.\rdblquote
\par \pard\plain\f3\fs22
\par It seems indisputable that an association that
\par seeks to transmit such a system of values engages in
\par expressive activity.
\par
\par it is not the role of the
\par courts to reject a group\rquote s expressed values because they
\par disagree with those values or find them internally incon-sistent.
\par
\par A \plain\f3\fs22\b 1978 position statement\plain\f3\fs22 to the Boy Scouts\rquote Executive
\par Committee, signed by Downing B. Jenks, the President of
\par the Boy Scouts, and Harvey L. Price, the Chief Scout
\par Executive, expresses the Boy Scouts\rquote \ldblquote official position\rdblquote
\par with regard to \ldblquote homosexuality and Scouting\rdblquote :
\par \ldblquote Q. May an individual who openly declares himself
\par to be a homosexual be a volunteer Scout leader?
\par \ldblquote A. \plain\f3\fs22\ul No. The Boy Scouts of America is a private,
\par membership organization and leadership therein is
\par a privilege and not a right\plain\f3\fs22 . We do not believe that
\par homosexuality and leadership in Scouting are appro-priate.
\par We will continue to select only those who in
\par our judgment meet our standards and qualifications
\par for leadership.\rdblquote
\par
\par But here
\par Dale, by his own admission, \plain\f3\fs22\b is one of a group of gay Scouts
\par who have \ldblquote become leaders in their community \plain\f3\fs22 and are
\par open and honest about their sexual orientation.\rdblquote App. 11.
\par Dale was the copresident of a gay and lesbian organization
\par at college and remains a gay rights activist. Dale\rquote s pres-ence
\par in the Boy Scouts would, at the very least, force the
\par organization to send a message, both to the youth mem-bers
\par and the world, that the Boy Scouts accepts homo-sexual
\par conduct as a legitimate form of behavior.
\par
\par \plain\f3\fs24\b\i Hurley\plain\f3\fs22 is illustrative on this point. There we considered
\par whether the application of Massachusetts\rquote public accom-modations
\par law to require the organizers of a private
\par St. Patrick\rquote s Day parade to include among the marchers
\par an Irish-American gay, lesbian, and bisexual group, GLIB,
\par violated the parade organizers\rquote First Amendment rights.
\par We noted that the parade organizers did not wish to ex-clude
\par the GLIB members because of their sexual orienta-tions,
\par but because they wanted to march behind a GLIB
\par banner. We observed:
\par \ldblquote [A] contingent marching behind the organization\rquote s
\par banner would at least bear witness to the fact that
\par some Irish are gay, lesbian, or bisexual, and the pres-ence
\par of the organized marchers would suggest their
\par view that people of their sexual orientations have as
\par much claim to unqualified social acceptance as hetero-sexuals
\par . . . . The parade\rquote s organizers may not believe
\par these facts about Irish sexuality to be so, or they may
\par object to unqualified social acceptance of gays and
\par lesbians or have some other reason for wishing to
\par keep GLIB\rquote s message out of the parade. But whatever
\par the reason, it boils down to the choice of a speaker not
\par to propound a particular point of view, and that choice
\par is presumed to lie beyond the government\rquote s power to
\par control.\rdblquote
\par
\par The presence of an
\par avowed homosexual and gay rights activist in an as-sistant
\par scoutmaster\rquote s uniform sends a distinctly different
\par message from the presence of a heterosexual assistant
\par scoutmaster who is on record as disagreeing with Boy
\par Scouts policy. \plain\f3\fs22\ul The Boy Scouts has a First Amendment
\par right to choose to send one message but not the other. \plain\f3\fs22 The
\par fact that the organization does not trumpet its views
\par from the housetops, or that it tolerates dissent within
\par its ranks, does not mean that its views receive no First
\par Amendment protection.
\par
\par State public accommodations laws were originally en-acted
\par to prevent discrimination in traditional places of
\par public accommodation\emdash like inns and trains.
\par
\par 3 Four State Supreme Courts and one United States Court of Appeals
\par have ruled that the Boy Scouts is not a place of public accommodation.
\par
\par Dale contends that we should apply the intermediate
\par standard of review enunciated in United States v. O\rquote Brien,
\par 391 U. S. 367 (1968), to evaluate the competing interests.
\par There the Court enunciated a four-part test for review of a
\par governmental regulation that has only an incidental effect
\par on protected speech\emdash in that case the symbolic burning of
\par a draft card. A law prohibiting the destruction of draft
\par cards only incidentally affects the free speech rights of
\par those who happen to use a violation of that law as a sym-bol
\par of protest. But New Jersey\rquote s public accommodations
\par law directly and immediately affects associational rights,
\par in this case associational rights that enjoy First Amend-ment
\par protection. Thus, O\rquote Brien is inapplicable.
\par
\par \plain\f2\fs20 ------------------------------------------
\par \pard\plain\f3\fs28 Church Responds to Supreme Court Ruling on Boy Scouts\plain\f3\fs22
\par
\par \plain\f3\fs22\i June 28, 2000 \plain\f3\fs22
\par
\par SALT LAKE CITY, Utah\emdash In response to today's ruling by the U.S. Supreme Court regarding the Boy Scouts of America,
\par The Church of Jesus Christ of Latter-day Saints has issued the following statement:
\par
\par The Church applauds today's decision by the Supreme Court affirming the constitutional right of the Boy Scouts of
\par America as a private association to determine its own standards for membership and selection of leaders.
\par
\par \plain\f3\fs22\cf1 http://www.lds.org/med_inf/new_upd/new_upd-current.html\plain\f3\fs22
\par
\par also \plain\f3\fs22\b from BSA\plain\f3\fs22
\par
\par \plain\f3\fs22\b\i Boy Scouting makes no effort to discover the sexual orientation of any person\plain\f3\fs22 . Scouting's message is compromised
\par when prospective leaders present themselves as role models inconsistent with Boy Scouting's understanding of the
\par Scout Oath and Law.
\par
\par \plain\f3\fs22\cf1 http://www.bsa.scouting.org/press/000628/index.html\plain\f3\fs22
\par \pard\plain\f2\fs20
\par }