"How solemn is the duty of the mighty chief": mediating the conflict of rights in Boy Scouts of America v. Dale.

• Author: O'Quinn, John C.

"HOW SOLEMN IS THE DUTY OF THE MIGHTY CHIEF"(1): MEDIATING THE CONFLICT OF RIGHTS IN Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)

1. INTRODUCTION

   Since 1910, the Boy Scouts of America(2) has provided what it describes as an educational program for boys and young men to build character, to train in the responsibilities of participatory citizenship, and to develop personal fitness.(3) For much of its ninety-year history, Scouting has been seen as the "embodiment of liberalism," exemplifying values such as "the belief in merit, autonomy, equal treatment, patriotism, community, [and] child development."(4) More recently, however, many of Scouting's values and views have come into question as "bigoted, outmoded boilerplate."(5) As society's mores have shifted away from a "Norman Rockwell" depiction of America, the Boy Scouts has found itself defending lawsuits against some of those they have denied admission.(6) The plaintiffs in these cases maintain that the Boy Scouts of America constitutes a place of public accommodation under state or federal law,(7) and that their denial of admission is unlawful discrimination.(8) Until 1998, the Boy Scouts successfully argued that Scouting was not covered by those statutes or that it fell within a statutory exception, thus avoiding federal constitutional questions.(9) However, when the Boy Scouts faced litigation under New Jersey's broad public accommodations statute,(10) it brought the Scouts' constitutional rights of speech and free association directly into conflict with the State's compelling interest in eliminating discrimination.(11)

   Last Term, in Boy Scouts of America v. Dale,(12) the Supreme Court resolved this conflict, holding that requiring the Boy Scouts to admit an avowed homosexual into adult membership violates the Scouts' First Amendment right of expressive association. As the author of the opinion, Chief Justice Rehnquist had the weighty responsibility of mediating the conflicting interests of organizations like the Boy Scouts and excluded individuals such as James Dale, as well as state interests all entangled in public accommodations laws. The Court found that the application of New Jersey's Law Against Discrimination (LAD)(13) to the Boy Scouts in this case "would significantly burden the [Boy Scouts'] right to oppose or disfavor homosexual conduct."(14)

   Although the Court was correct in determining that "the First Amendment prohibits the State from imposing" such a "severe intrusion on the Boy Scouts' rights to freedom of expressive association,"(15) the Court should have also considered the case directly under the Free Speech Clause of the First Amendment and the seldom-discussed freedom of intimate association.(16) Boy Scouts thus provided an opportunity not only to delineate the meaning of the right of intimate association, but also to forge greater consensus generally on the protections afforded by the freedoms of speech and association.

   Part II of this Comment details the factual and procedural history leading up to the Court's decision as well as the majority and dissenting opinions in Boy Scouts. Part III.A examines the Boy Scouts' claim to a right of expressive association and in particular focuses on the dissent's argument that BSA is agnostic on issues of sexuality. Part III.B discusses the Scouts' free speech claim, which is analogous to the expressive association argument. Part III.C explores the application of the doctrine of intimate association to the Boy Scouts. In concluding, Part IV considers the implications of an opposite outcome in Boy Scouts for religious organizations.

2. FACTS AND PROCEDURAL HISTORY

   1. The Boy Scouts of America

      The Boy Scouts of America is a "private, not-for-profit organization engaged in instilling its system of values in young people"(17) and "prepar[ing] them to make ethical choices over their lifetime in achieving their full potential."(18) BSA describes itself as a "values-based program with its own code of conduct."(19) This code of conduct is found in the Scout Oath and Law, by which Boy Scouts of all ages--youth and adult leaders--are expected to live:(20)

      Scout Oath

      On my honor I will do my best To do my duty to God and my country and to obey the Scout Law; To help other people at all times; To keep myself physically strong, mentally awake, and morally straight. Scout Law

      A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.(21) Many Scouting activities involve exploring and appreciating the outdoors, "[b]ut Scouting is far more than fun in the outdoors, hiking, and camping. Scouting is a way of life. Scouting is growing into responsible manhood, learning to be of service to others."(22) Thus, although Scouting "focuses on camping and outdoor skills, this is the means to an end."(23) "As stated by Scouting's founder, Robert S.S. Baden Powell: `Don't let the technical outweigh the moral. Field efficiency, backwoodsrnanship, camping, hiking, good turns, jamborees, comradeship, are all means, not the end. The end is character. Character with a purpose.'"(24) In short, the "several functions and missions of the BSA are important and vital to the whole: there is a religious component, a teaching component and a strong overall emphasis in shaping the moral character of young boys."(25)

      "Boy Scouting takes place primarily in Troops, small units typically consisting of 15 to 30 boys led by a uniformed Scoutmaster and Assistant Scoutmasters,"(26) and patrols of six to eight boys.(27) Parents play an active role in their sons' participation in Scouting.(28) Nearly sixty-five percent of Boy Scouts troops are sponsored by synagogues and churches.(29) Scouting is an "integral part of many church youth programs."(30) Before a boy can become a Scout, he must satisfy his Scoutmaster that he "[u]nderstand[s] and intend[s] to live by the Scout Oath or Promise, the Scout Law, the Scout motto, and the Scout slogan."(31) Scout leaders likewise must "[a]gree to live by the Scout Oath and Law" before they can serve, and they are expected to set "an example for themselves and for others by living the Scout Oath and Law to the best of their abilities."(32)

      Because much BSA activity is instructional in nature, the Scoutmaster serves as a teacher and role model to the boys in his troop. The Scoutmaster Handbook advises the potential leader that "[t]he Scouts in your troop will look up to you for guidance on a number of levels, many of them unspoken. The way you treat others, provide leadership, and act during meetings and on Scout outings will influence Scouts' actions."(33) Although his mentoring duties are most often executed in other areas of Scouting, the Scout leader's teaching and role model responsibilities occasionally extend to the arena of sexuality. BSA instructs its leaders in such circumstances to promote a message of sexual abstinence until marriage, in accordance with the "morally straight" provision of the Scout Oath.(34) When further questions arise, leaders are instructed to "answer them as honestly as [they] can and, whenever it is appropriate, [to] encourage [the Scout] to share his concerns with his parents or guardian, spiritual leader, or a medical expert."(35)

      BSA maintains that "homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms `morally straight' and `clean.'"(36) "We believe an avowed homosexual is not a role model for the values espoused in the Scout Oath and Law."(37) The Boy Scouts has promulgated several "position statement[s]" to that effect.(38) The operation of this position is borne out by BSA's decision to sever its relationship with avowed homosexuals.(39)

   2. James Dale

      As a youth, James Dale rose through the Scouting program first as a Cub Scout and later as a Boy Scout.(40) Scouting provided Dale with "a sense of civic and ethical responsibility, fostered his self-confidence, and gave him the opportunity to have fun and form friendships with other boys in his community."(41) "By all accounts, Dale was an exemplary Scout."(42) While a Scout, Dale earned twenty-five merit badges, was elected into the Order of the Arrow--Scouting's society of honor campers--and was ultimately awarded Scouting's highest honor, the rank of Eagle Scout.(43) After he aged out of the youth program in 1989, the Boy Scouts approved Dale's application to be an Assistant Scoutmaster in Troop 73 of Monmouth Council.(44)

      Dale's tenure as an Assistant Scoutmaster was cut short after just sixteen months.(45) Around the same time that he became an Assistant Scoutmaster, Dale left home to attend Rutgers University.(46) While attending college Dale "first acknowledged to himself and others that he is gay."(47) Dale quickly became involved with and rose to become the co-president of the Rutgers University Lesbian/Gay Alliance in 1990.(48)In his capacity as co-president, Dale attended a seminar "addressing the psychological and health needs of lesbian and gay teenagers" and was interviewed "about his advocacy of homosexual teenagers' need for gay role models" by a local newspaper.(49) An article entitled "Seminar addresses needs of homosexual teens" and featuring a picture of James Dale appeared in the July 8, 1990 edition of the Newark Star-Ledger.(50) Subsequently BSA removed Dale from its adult membership and stripped him of his Assistant Scoutmaster position.(51) Claiming that the Boy Scouts "violated New Jersey's public accommodations statute and its common law by revoking [his] membership based solely on his sexual orientation," Dale filed suit in New Jersey Superior Court.(52)

   3. Procedural History in the New Jersey Courts

      The New Jersey Superior Court, Chancery Division, granted summary judgment in favor of the Boy Scouts, holding that BSA is not a place of public accommodation.(53) The court alternatively concluded that as a "distinctly private...