Dale v. Boy Scourts of America: Whether the Application of New Jersey's Public Accommodationsn Law, Forcing the Boy Scouts to Include an Avowed Homosexual, Violates the Scouts' First Amendment Freedom of Expressive Association - Jacob M. Carpenter

• Citation: Vol. 52 No. 2
• Publication year: 2001

CASENOTE

Dale v. Boy Scouts of America: Whether the

Application of New Jersey's Public

Accommodations Law, Forcing the Boy

Scouts to Include an Avowed Homosexual

Violates the Scouts' First Amendment

Freedom of Expressive Association

In Dale v. Boy Scouts of America,¹ the United States Supreme Court held that the application of a New Jersey public accommodations law, forcing the Boy Scouts to extend membership to an avowed homosexual and gay rights activist, violated the Boy Scout's First Amendment right to freedom of expressive association.² The Court held New Jersey's law burdens the Boy Scouts' right to oppose homosexual conduct, and New Jersey's interest in curbing discrimination does not justify the intrusion on the Boy Scouts' right to freedom of expressive association.

I. Factual Background

In 1978, at the age of eight, James Dale ("Dale") joined the Monmouth Council's Cub Scout Pack 142. In 1981 Dale became a Boy Scout and eventually earned the rank of Eagle Scout, one of scouting's highest honors. In 1989 Dale began college at Rutgers University. At that time he applied for adult membership with the Boy Scouts of America ("Boy Scouts") and became an assistant scoutmaster.³

While at Rutgers, Dale openly admitted, for the first time, that he was gay. Dale became copresident of the Rutgers University Lesbian/Gay Alliance. In July 1990 Dale attended a seminar that discussed the psychological and health needs of gay teenagers. After interviewing Dale at the seminar, a newspaper published the interview and included a photograph of Dale. The photograph's caption identified Dale as the copresident of the Lesbian/Gay Alliance. Later that month, Monmouth Council Executive James Kay revoked Dale's adult membership. Kay explained to Dale that the Boy Scouts "specifically forbid membership to homosexuals."⁴

Demanding to be reinstated, Dale filed a complaint against the Boy Scouts alleging that the Boy Scouts, as a place of public accommodation, violated New Jersey's Law Against Discrimination ("LAD") by revoking his membership and expelling him from his position of Assistant Scoutmaster.⁵ The trial court granted summary judgment for the Boy Scouts, holding: (1) LAD does not apply to the Boy Scouts because the Boy Scouts is not a "place of public accommodation;"⁶ (2) the Boy Scouts met the statutory exclusion from LAD because it was an "institution . . . which is in its nature distinctly private;"⁷ and (3) the Boy Scouts "First Amendment freedom of expressive association rights prevented] government from forcing them to accept [Dale] as an adult leader-member" because the Boy Scouts has historically believed that homosexual conduct is morally wrong.⁸ Therefore, to allow Dale, a known homosexual, to serve as an adult leader would be "absolutely antithetical to the purpose of Scouting."⁹

The Superior Court of New Jersey, Appellate Division, reversed and remanded.¹⁰ The court held: (1) the Boy Scouts is a place of public accommodation under New Jersey's LAD; (2) by expelling Dale and depriving him of a public accommodation, the Boy Scouts violated LAD; and (3) applying LAD to prohibit the Boy Scouts from excluding homosexuals does not infringe upon the Boy Scouts' freedom of expressive association¹¹ or its freedom of intimate association.¹² The New Jersey Supreme Court affirmed the decision of the Appellate Division.¹³

The United States Supreme Court granted the Boy Scouts' petition for certiorari to determine whether applying New Jersey's LAD violated the Boy Scouts' First Amendment right of expressive association.¹⁴ The Court examined the issue in three steps and held that the Boy Scouts' freedom of expressive association had been violated.¹⁵ Therefore, the Court reversed the judgment of the New Jersey Supreme Court and remanded the case.¹⁶

II. Legal Background

Though freedom of association is not expressly recognized in the Federal Constitution, such a right "may be inferred from other rights and protections guaranteed by the constitution."¹⁷ In the 1958 case of NAACP v. Alabama ex rel. Patterson,¹⁸ the Court first recognized that freedom of association is protected by the Constitution.¹⁹ In Patterson the NAACP was held in contempt by an Alabama state court when the NAACP refused to disclose a complete list of its members to the court.²⁰ However, the United States Supreme Court noted that forcing the NAACP to disclose a complete list of its members could cause some members to leave the group, as well as causing others not to join.²¹ Thus, because the State's order could prevent the NAACP members from pursuing a "collective effort to foster [their] beliefs,"²² the Court ruled that the State's order violated the NAACP's freedom of association.²³ Freedom of association was deemed "an inseparable aspect of 'liberty' assured by the Due Process Clause of the Fourteenth Amendment."²⁴ The State failed to show an interest sufficient to justify suppressing the NAACP's right to associate.²⁵

Seven years later in Griswold v. Connecticut,²⁶ the Supreme Court extended the freedom of association to intimate relationships, including family relationships.²⁷ The Court held that a Connecticut law that prohibited the use of birth control impinged upon a married couples' freedom of association.²⁸ The Court noted that although freedom of association is not mentioned explicitly in the Constitution,²⁹ association in certain contexts is a form of expressing one's opinion³⁰ and "[t]he right of association [is] contained in the penumbra of the First Amendment."³¹

The Court applied the freedom of association against a state's public accommodations law in the 1984 decision of Roberts v. United States Jaycees.³² In Roberts a Minnesota Act prohibited gender discrimination in places of public accommodation.³³ When two local Jaycees chapters admitted a woman, the Jaycees' national organization threatened to revoke the two chapters' charters. The two chapters filed discrimination charges against the national organization. The national organization argued that the Act would, in essence, force them to admit women, which violated their constitutional freedom of association rights.³⁴

The Court in Roberts expressly distinguished between two forms of association: (1) intimate association, and (2) expressive association.³⁵

Both the freedom of intimate association and the freedom of expressive association are guaranteed by the Constitution as fundamental to personal liberty.³⁶ Pertaining to intimate association, a group is more likely to be afforded constitutional protection if the group is, among other things, small, selective, and seclusive.³⁷ The Court ruled that because the Jaycees is a large and primarily unselective (except for age and sex) group, it is not protected under an intimate association claim.³⁸

Turning to expressive association, the Court stated that "implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."³⁹ Forcing a group to accept a member clearly intrudes on that group's affairs.⁴⁰ However, the State may impinge upon a group's right to associate for expressive purposes if the State's regulations "serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."⁴¹

Applying the facts of Roberts, the Court ruled that the goal of the Act was not to hinder a group's expression,⁴² that the Act served a compelling state interest of eliminating discrimination,⁴³ and that the State "abridge[d] no more speech or associational freedom than [was] necessary to accomplish [its] purpose."⁴⁴ Therefore, the Court found that the Act, although forcing the Jaycees to allow females to become members, was valid.⁴⁵

The Supreme Court reapplied the factors from Roberts in the 1987 case Board of Directors of Rotary International v. Rotary Club of Duarte.⁴⁶ However, the Court added that if a group is not forced to "abandon or alter" one of its activities by including certain members, then that group's exclusionary policy will not be constitutionally protected.⁴⁷ In deciding whether a California statute violated the First

Amendment by requiring Rotary Clubs to admit female members, the Court held that the Duarte Rotary Club ("Club") was not afforded intimate association protection because of its large size, its visuality in public, and its inclusive rather than exclusive membership policy.⁴⁸ The Club was not afforded expressive association protection because it failed to prove that the inclusion of women would affect the Club's existing members from carrying out their various purposes.⁴⁹ Nor did the inclusion of women force the Club to abandon any of its goals or activities.⁵⁰ In addition, the Court remarked that even if the State infringed slightly on the Club members' right to expressive association, such an infringement was justified by the State's compelling interest to eliminate discrimination against women.⁵¹

In the following year, the Court in New York State Club Ass'n v. City of New York⁵² followed the above precedents, but added that a group's exclusionary policy must be connected with its ability to carry out its expressive purposes.⁵³ In this case, New York City amended a law to prevent discrimination in private clubs that are essentially public in nature.⁵⁴ The New York State Club Association claimed that the law violated the First and Fourteenth Amendments.⁵⁵ The Supreme Court disagreed.⁵⁶

The Court noted that the following factors were significant in showing that intimate association protection would not be afforded to all clubs: (1) some of the clubs were comparable in size to the groups in Roberts and Rotary; (2) the clubs provided services to nonmembers; and (3) the clubs received payments from nonmembers.⁵⁷ Even though "a considerable amount of...