Boy Scouts of America v. Dale
530 U.S. 640 (2000)

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CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued April 26, 2000-Decided June 28, 2000

Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court's Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among other rulings, the court 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; 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 distinguished Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, on the ground that Dale's reinstatement did not compel the Boy Scouts to express any message.

Held: Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468 U. S. 609, 623. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling


state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts, 468 U. S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in "expressive association." The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey Supreme Court's determination that the Boy Scouts' ability to disseminate its message would not be significantly affected by the forced inclusion of Dale. First, contrary to the state court's view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, 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." Given that the Boy Scouts' expression would be burdened, the Court must inquire whether the application of New Jersey's public accommodations law here runs afoul of the Scouts' freedom of expressive association, and concludes that it does. Such a law is within a State's power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment. See, e. g., id., at 572. The Court rejects Dale's contention that the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367, should be applied here to evaluate the

Full Text of Opinion

Primary Holding
Laws that prohibit discrimination against certain protected groups in public accommodations do not prevent private organizations from expelling members based on a protected status such as sexual orientation.
James Dale was a student at Rutgers University and an Eagle Scout in the Boy Scouts of America who served as assistant Scoutmaster of a New Jersey troop. He became active in organizations that advocated for gay and lesbian rights during his time at Rutgers. In a related interview, Dale revealed that he was gay. Homosexuality was perceived by the Boy Scouts as being incompatible with their efforts to promote certain values. When Boy Scouts officials discovered this information, they removed him from his Scoutmaster position and revoked his membership. Dale responded by arguing that this was sexual orientation discrimination that was impermissible under New Jersey's law on public accommodations.

The state court agreed with Dale and ordered the Boy Scouts to reinstate him. It found that the New Jersey law was constitutional under the First Amendment because it passed the strict scrutiny test. The state had a compelling interest in protecting citizens from accommodation and had chosen a means of pursuing that objective that was narrowly tailored to not infringe on more speech than necessary. The court also felt that other members still could promote the viewpoints that they chose despite Dale's inclusion.
  • Evan Wolfson (plaintiff)
  • George Davidson (defendant)



  • William Hubbs Rehnquist (Author)
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas

The First Amendment right to free association contains a corollary right to be free from unwanted association. Rehnquist based his reasoning upon the 1984 decision in Roberts v. United States Jaycees, which extended this right to groups that engage in expressive activity. Finding that the Boy Scouts are such an organization, he observed that they have a clear central mission and plan activities designed to promote them. It was not necessary for the promotion of such values to be the sole purpose of the organization for it to be classified as engaging in expressive activity.

Whether the Court, the legislature, or the general public agreed with the organization's views should be irrelevant to the analysis, according to Rehnquist, as long as the organization's conduct was not illegal. He accepted the organization's claims about its beliefs, policies, and goals at face value, finding that it had taken an official policy on the issue that would clash with the presence of an assistant Scoutmaster who was openly homosexual. As a private, non-profit organization, the Boy Scouts had the right to send the message that they chose.


  • John Paul Stevens (Author)
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Introducing federalism principles to his analysis, Stevens suggested that the New Jersey law allowed it to serve as a laboratory for experimentation, and that the Constitution should not interfere with a state in that regard. He pointed out that there was nothing in the express policies or handbook of the Boy Scouts that voiced hostility to homosexuals or stated values inconsistent with being gay. Moreover, Scoutmasters were instructed not to discuss matters relating to sex with the Scouts but instead to refer them to others for guidance. He felt that Dale's sexual orientation thus would have a minimal impact on the appearance of the message that the organization sent.


  • David H. Souter (Author)
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Case Commentary

This case stands for the proposition that freedom of association can be a limiting as well as a broadening principle. Organizations also receive substantial deference from courts in how they define their objectives, as long as those objectives are not illegal.

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