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

  • Dale was a Boy Scout leader. But only until the Boy Scouts found out that he was gay. They revoked his position.
    • The Boy Scouts argued that they instilled ‘values’ in young boys, and homosexuality was inconsistent with those values.
  • Dale sued under a New Jersey law that prohibited discrimination on the basis of sexual orientation in places of public accommodation.
  • The Trial Court found for the Boy Scouts. Dale appealed.
    • The Trial Court found that homosexuality, from a Biblical and historical perspective, was both morally wrong and criminal.
    • The Court found that the Boy Scouts were a private association, and so were not covered by the public accommodation law.
  • The New Jersey Supreme Court reversed. The Boy Scouts appealed.
    • The New Jersey Supreme Court found that the Boy Scouts were public enough to be covered by the law.
    • The Court found that Dale’s inclusion did not compel the Boy Scouts to embrace any particular message.
    • The Court found that there was a compelling government interest in eliminating the destructive consequences of discrimination from society, and that the New Jersey law was narrowly tailored.
  • The US Supreme Court reversed.
    • The US Supreme Court found that a private organization is allowed to exclude people from membership through their 1st Amendment right to free association, even if they are acting in a discriminatory manner.
    • The Court found that the forced inclusion of an unwanted person in a group infringes the group’s free expression if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.
      • “The State interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scout’s rights to freedom of expressive association.”
      • The Court came to this conclusion despite the fact that one could argue that the Boy Scouts are not primarily an organization dedicated to promoting heterosexuality.
        • How ‘severe’ does an intrusion have to be to be invalidated? Is the Boy Scouts’ anti-homosexuality viewpoint central enough to the organization’s purpose to really warrant an exception to the public accommodation?
          • It’s not like the Ku Klux Klan arguing that they shouldn’t be forced to accept minorities.
  • In a dissent it was argued that the 1st Amendment gives groups the right to express their opinions, but that doesn’t mean that they can have discriminatory membership policies.
    • “It is exceptionally clear that the Boy Scouts have, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality.”
  • Compare to Roberts v. United States Jaycees (468 U.S. 609 (1984)), which said that the Jaycees could not keep women out of their pro-business club.
    • The difference is that the Boy Scouts advocated against homosexuality, and so the Court felt they should be forced to accept someone who didn’t share their beliefs. But in Roberts, the Jaycees didn’t advocate against women businessmen, so having women members didn’t go against their fundamental principles.