Law and Sexuality (2001) by Jeremy Patrick (jhaeman@hotmail.com)

I. INTRODUCTION

The issue of whether gay, lesbian, bisexual, and transgendered ("GLBT") individuals should receive equal rights is a contentious one in modern political discourse. The contest is waged in the social sphere (such as protests by ACT-UP and the Reverend Fred Phelps), the executive branch of government (such as President Clinton's 1998 executive order banning employment discrimination by federal agencies), and the legislative branch (including the 1996 Defense of Marriage Act). However, in the past fifteen years, GLBT activists have increasingly turned to the judicial branches of state and federal government in an attempt to secure equal rights. The results of these attempts have been mixed. In 1987, GLBT activists suffered a demoralizing defeat when the Supreme Court held that sodomy statutes were constitutional.¹ In recent years, the trend had seemed to turn with the Court's voiding of Colorado's Amendment 2 in 1996² and the Vermont Supreme Court's holding in 1999 that same-sex couples must be afforded the same rights as opposite sex couples.³

In Boy Scouts of America v. Dale,⁴ the U.S. Supreme Court issued its most recent decision in the area of GLBT rights. In Dale, the Boy Scouts of America ("BSA") expelled a decorated Scout, James Dale, from his position as a volunteer Scoutmaster after he revealed his homosexuality in a newspaper interview. When Dale brought suit under a New Jersey public accommodations law, the New Jersey Supreme Court held that the BSA had to admit Dale.⁵ The court reasoned that the BSA was a public accommodation under the meaning of the statute because of its solicitation activities and close relationship with government entities,⁶ that it did not have a freedom of intimate association because of its large size and nonselectivity,⁷ and that it did not have a freedom of expressive association because Scouts did not assemble for the purpose of disseminating the belief that homosexuality was immoral.⁸

However, the United States Supreme Court reversed and held that the BSA could not be forced to admit Dale.⁹ The Court held that the BSA's right to expressive association would be infringed because the BSA had a sincere belief that homosexuality was immoral¹⁰ and Dale's mere presence would force it to send the message that homosexuality was consistent with Scouting values.¹¹ This decision is likely to have an important impact on the effectiveness of public accommodations laws because it will be easier for organizations to argue that they have an expressive purpose in their discrimination which would be violated by the mere presence of the excluded individual.

This Note examines the Dale decision. Part II contains brief discussions of public accomodations laws and the freedom of association. Next, Supreme Court doctrine on so-called "right-to-exclude" cases is examined. Part II concludes with an in-depth look at the majority and dissenting opinions of the U.S. Supreme Court in Dale. Part III contains an analysis of the Court's majority opinion and argues that it was erroneously decided. First, because the BSA did not have an expressed belief that homosexuality was immoral since no public documents contained this belief and members were taught to discuss sexuality with their parents or religious leaders instead of Scoutmasters. Second, because any expressive purpose the BSA had regarding homosexuality would not be seriously burdened by Dale's presence because he had agreed to follow official BSA policy (that Scoutmasters not discuss sexuality with Scouts) and because the BSA could easily mitigate any message Dale's presence would send (e.g., by including explicit declarations in BSA publications that homosexuality was inconsistent with Scouting but that the BSA followed all applicable laws). Third, because any incidental burden on the BSA's freedom of expressive association would be justified by the State of New Jersey's compelling interest in ending discrimination on the basis of sexual orientation. As we shall see, this case will have important impacts on state efforts to end discrimination in places of public accommodations.

II. BACKGROUND

A. General Background: Setting the Stage

Like every case, the Dale decision did not spring fully formed from a void. A complex factual and legal history set the stage for it, and understanding this history is essential to understanding the reasoning of its majority and dissenting opinions. This section briefly examines the origin of the freedom of association and of public accommodation laws before turning to a discussion of several important cases that gave meaning to a "right to associate" in the context of organizations' attempts to exclude certain individuals protected under public accommodations laws. As we shall see, the precedential value of these cases was one of the major points of dispute between the majority and dissenting opinion in Dale.

1. Freedom of Association The United States Constitution does not explicitly provide for a right to associate. However, in the latter half of the twentieth century, the Supreme Court inferred the existence of such a right from the First Amendment rights of free speech, press, assembly, and petition.¹² In NAACP v. Alabama ex rel. Patterson,¹³ traditionally seen as the first judicial recognition of a freedom of association, the State of Alabama tried to force a black civil rights organization to reveal the names and addresses of its rank-and-file members.¹⁴ The Supreme Court held that the organization had a constitutional right to refuse disclosure because of its members' freedom of association.¹⁵ The Court stated "[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment."¹⁶ The Supreme Court later elaborated on this holding by stating that freedom of association consisted of two distinct rights:¹⁷ the right to intimate association and the right to expressive association.

2. Public Accommodations Laws The purpose of public accommodations laws is to ensure equal access to goods and services¹⁸ and to "affirm . . . the equal dignity and worth of excluded individuals."¹⁹ The first federal public accommodations statute was ruled unconstitutional by the Supreme Court in 1883,²⁰ but states quickly stepped in to enact similar laws. In 1964, Congress passed the Civil Rights Act which prohibited discrimination in public accommodations on the basis of race, color, religion, or national origin.²¹ Efforts to end discrimination continue to be greater under state law than federal law, including protection based on characteristics such as age, marital status, sexual orientation, and more.²² The Supreme Court has held that public accommodations laws "plainly serve[] compelling state interests of the highest order."²³ As one commentator explained, "[b]y refusing to deal with an individual because of the individual's status, a group fails to recognize the person's individuality and humanity and thereby diminishes us all."²⁴

3. Right to Exclude Cases The Supreme Court has noted that "[f]reedom of association . . . plainly presupposed a freedom not to associate."²⁵ However, this freedom is not absolute and beginning in the mid-1980s the Court was faced with a series of cases dealing with the issue of whether organizations have a constitutional right to exclude members of protected classes under state public accommodations laws. The first of these cases, Roberts v. United States Jaycees,²⁶ is discussed at length because not only was it a landmark case in the struggle to end sex discrimination, it was the first time the Court set forth a framework to analyze all subsequent freedom of association cases. The next three cases are discussed briefly to give a sense of the development of the law in this area.

a. Roberts v. United States Jaycees²⁷ In Roberts, the Supreme Court was confronted with a novel issue: is an all-male organization's freedom of association violated when a public accommodations law forces it to accept women as members? The Jaycees, an all-male nonprofit organization devoted to humanitarian and professional activities²⁸ had established a membership classification system that created two main categories:²⁹ "regular" and "associate" members. "Regular" membership was open to men between the ages of eighteen and thirty-five,³⁰ while "associate" membership was open to women or older men.³¹ "Associate" members could not vote, hold office, or participate in certain training and award programs.³² When two Minnesota chapters began allowing women as "regular" members, the national organization imposed a number of sanctions and eventually threatened to revoke the chapters' charters.³³ Members of the chapters filed complaints under Minnesota's Human Rights Act³⁴ which forbade, inter alia, discrimination on the basis of sex in places of public accommodation. The Jaycees argued that its freedom of association would be violated by the forced admission of women. Eventually the dispute reached the Supreme Court and it held that application of the statute did not violate the Jaycees' constitutional rights.³⁵ It explained that freedom of association has two senses:³⁶ a right to intimate association and a right to expressive association. The Court stated that the right to intimate association protects the individual's choice to "enter into and maintain certain intimate human relationships,"³⁷ and that these relationships "are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship."³⁸ The Court held that the Jaycees did not have a right to intimate association because the chapters had hundreds of members,³⁹ did not have criteria for judging applicants for membership (other than age or sex),⁴⁰ and admitted new members without inquiry into their background.⁴¹

The Court explained that the right to expressive association is tied to the individual's First Amendment rights to engage in certain activities: "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort towards those ends were not also guaranteed."⁴² The Court noted, however, that this right could be limited by government action that served an important purpose: "The right to associate for expressive purposes is not . . . absolute. Infringements on that right may be justified 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."⁴³

The Court found that the Jaycee's right to expressive association would not be seriously burdened because the type of activities the organization participated in (charity, lobbying, and fundraising) did not depend on the sex of the person performing them.⁴⁴ The Court also noted that even if the forced inclusion of women did incidentally burden the Jaycee's freedom of expressive association, the effect was necessary to accomplish the State's legitimate purpose in ending sex discrimination. "[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent--wholly apart from the point of view such conduct may transmit."⁴⁵

In effect, the legacy of Roberts is a deceptively simple three-step test to determine if a group has a constitutional right to exclude members in the face of a public accommodations law. First, the court must determine if the group is engaged in expressive association.⁴⁶ If the group is engaged in expressive association, the court must decide if forced inclusion of the member would "serious[ly] burden" this right.⁴⁷ Third, if the group is engaged in expressive association that would be burdened by inclusion of the new member, the court must decide if the State has a compelling interest that outweighs the burden imposed on the organization.⁴⁸

b. Board of Directors of Rotary International v. Rotary Club of Duarte⁴⁹ Three years after deciding Roberts, the Supreme Court was faced with a similar issue in Rotary. Rotary International ("R.I."), an "organization of business and professional men united worldwide [to] provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill and peace in the world,"⁵⁰ had revoked the charter of its chapter in Duarte, California because the chapter had admitted women members in violation of R.I.'s constitution.⁵¹ The chapter and its female members filed suit under California's Unruh Civil Rights Act,⁵² which forbade, inter alia, discrimination on the basis of sex "in all business establishments of every kind whatsoever."⁵³ When faced with the issue, the Supreme Court first entrenched the fact that "Roberts provides the framework for analyzing [freedom of association] constitutional claims."⁵⁴ The Court dismissed R.I.'s claim of freedom of intimate association by noting that its individual clubs numbered from fewer than 20 to more than 900 members,⁵⁵ had an inclusive membership policy,⁵⁶ and carried on many activities in the presence of strangers.⁵⁷

The Court quickly disposed of R.I.'s freedom of expressive association claim by stating that "the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes."⁵⁸ The Court noted that R.I.'s ability to perform humanitarian activities would probably be strengthened, not weakened, by including women.⁵⁹ The Court concluded, as in Roberts, by noting that even if some slight infringement on R.I.'s freedom of association was made, the intrusion was justified by the State's compelling interest in preventing sex discrimination.⁶⁰

c. New York State Club Ass'n v. City of New York⁶¹ A year after Rotary Club, the Supreme Court was presented with a facial challenge to a public accommodations law. New York City had revised its Human Rights Law⁶² to cover any private club of more than four hundred members that provided regular meal services and received dues from members.⁶³ The law was designed to afford minority groups access to the important business and professional contacts that occur at such clubs.⁶⁴ However, an association of 125 clubs filed suit, alleging that the statute violated its members' freedom of association.⁶⁵

The Supreme Court unanimously held that the statute was constitutional.⁶⁶ The Court stated that the association had not shown that the law "could never be applied in a valid manner,"⁶⁷ because presumably at least some of the clubs could be constitutionally subject to the law.⁶⁸ The Court noted, however, that individual clubs would still have the right to challenge a particular application of the law.⁶⁹

d. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston⁷⁰ Hurley was the only important right-to-exclude case handled by the Supreme Court in the 1990s. In Hurley, a group named GLIB was denied permission by the organizers of Boston's St. Patrick's Day parade to march as a group and carry a banner.⁷¹ GLIB was "formed for the very purpose of marching in [the parade] in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade."⁷² The group brought suit under a Massachusetts law that prohibited discrimination on the basis of sexual orientation in places of public accommodation.⁷³ The group was granted entry by a trial court because the parade had no "specific expressive purpose entitling [it] to protection under the First Amendment."⁷⁴ In a unanimous opinion, the Supreme Court reversed,⁷⁵ holding that an expressive message need not be "narrow [and] succinctly articulable"⁷⁶ to be protected by the First Amendment, and that forcing the parade organizers to allow GLIB to march would force it to send a message it did not agree with.⁷⁷

Two important aspects of this case must be understood to place it in proper context. First, the parade organizers brought suit under a freedom of speech theory, not a freedom of association theory.⁷⁸ Second, the organizers sought only to exclude GLIB from marching as a group, not to prohibit GLBT individuals from marching as part of other parade units: "[The parade organizers] disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the [parade organizers had] approved to march."⁷⁹

B. The Dale Decision: A Hard Choice Between Freedom and Equality

The application of public accommodations statutes to organizations like the Boy Scouts is a contentious and intriguing issue because it involves a conflict between two of our nation's most cherished values: the right of an individual to be treated on his or her own merits instead of on irrational stereotypes and the right of individuals to associate with whomever they wish without the government second-guessing their choice. This section first examines the history and structure of the Boy Scouts. Next, the facts leading up to the Dale litigation are examined before a brief summary of the New Jersey trial, Appellate Division, and Supreme Court decisions are presented. This section concludes with a discussion of the U.S. Supreme Court's majority and dissenting opinions.

1. The Boy Scouts of America As one court stated, "[v]irtually everyone knows something of the scouts. The image of youths pursuing outdoor and patriotic activities is entrenched in our culture."⁸⁰ The BSA was chartered by an Act of Congress in 1915 to "promote, through organization, and cooperation . . . the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues."⁸¹ The BSA has become one of America's most successful non-profit organizations: over 87 million youths and adults have joined Scouting since its inception⁸² and the organization currently has over four million youth members and one million adult members.⁸³ The BSA is comprised of 123,000 small units called "troops,"⁸⁴ which are coordinated by local and regional administrative units called "councils."⁸⁵ National BSA policy is set by a National Council and its Executive Committee.⁸⁶ Currently, the BSA operates the well-known scouting program, publishes three magazines on scouting, and offers an in-school scouting curriculum called "Learning for Life."⁸⁷ Entry into the BSA is relatively nonselective--any boy over the age of 11 willing to recite the Oath and meet a few other simple requirements is allowed membership⁸⁸ and the BSA actively advertises for new members.⁸⁹

However, the BSA has repeatedly faced lawsuits brought under public accommodations laws for its refusal to admit the so-called "Three-G's,"⁹⁰ gays, girls, and the "godless" (atheists and agnostics). Until James Dale brought suit in Illinois, the BSA had almost uniformly succeeded in evading public accommodations laws by arguing that it was not a "public accommodation" or a "business establishment," which was necessary for the application of most public accommodations laws.⁹¹ As one commentator put it, "[a]lthough BSA has teetered within the scope of state public accommodation law, the organization has not faced liability."⁹²

2. Factual History of Dale James Dale joined the Boy Scouts when he was eight years old.⁹³ By all accounts an excellent scout, Dale earned several awards, thirty merit badges, selection as a delegate to the 1985 National Boy Scout Jamboree, and the coveted rank of Eagle Scout (an honor attained by only 3% of Boy Scouts).⁹⁴ At the age of 18, Dale was approved for adult membership in the BSA and began serving as an Assistant Scoutmaster.⁹⁵

Approximately two years later, Dale received a letter from the Monmouth Council, the BSA's administrative unit for Dale's Troop, informing him that it "request[s] that [he] sever any relations that [he] may have with the Boy Scouts of America."⁹⁶ After Dale requested more information, he was told that he failed to meet "the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals."⁹⁷ At a later deposition, the Council Executive of the Monmouth Council claimed that he learned of Dale's homosexuality by having read an article in the Newark Star-Ledger about a seminar on the psychological health of gay and lesbian adolescents.⁹⁸ In the article, Dale identified himself as gay and as co-president of a Rutgers University GLBT rights group, but the BSA was not mentioned.⁹⁹

After attempting to gain reinstatement by internal BSA procedures,¹⁰⁰ Dale filed suit for damages and reinstatement under New Jersey's Law Against Discrimination¹⁰¹ ("LAD"), which prohibits, inter alia, discrimination on the basis of sexual orientation in "place[s] of public accommodation."¹⁰²

3. New Jersey Trial Court The trial court granted summary judgment for the BSA, holding that the organization was not a "place" for the purposes of LAD¹⁰³ and that even if it was, the BSA qualified for exemption as a "distinctly private" organization.¹⁰⁴ The court also stated that the BSA's freedom of expressive association would be violated by forced inclusion of Dale because "[t]he presence of a publicly avowed active homosexual as an adult leader of boy scouts is absolutely antithetical to the purpose of scouting."¹⁰⁵

4. New Jersey Appellate Court The Appellate Division of the Superior Court of New Jersey reversed the trial court's decision.¹⁰⁶ First, the appellate court held that LAD applies to more than just "places" in a narrow sense, because such a reading would frustrate the purpose of the statute. As the court put it, "places do not discriminate; people who own and operate places do."¹⁰⁷ The court explained that organizations with membership open to the general public, with no restrictions, are places of public accommodation, and therefore, the BSA is such an organization because of its size, willingness to include all boys that meet the age requirement, and frequent endeavors to attract new membership.¹⁰⁸

Second, the court held that the BSA's freedom of expressive association would not be infringed because it could not demonstrate a "strong relationship between its expressive activities and its discriminatory practice."¹⁰⁹ The court argued that if the BSA's avowed goals are virtues like patriotism, courage, and self-reliance, "[t]here is absolutely no evidence before us, empirical or otherwise, supporting a conclusion that a gay scoutmaster, solely because he is a homosexual, does not possess the strength of character necessary to care for, or to impart BSA humanitarian ideals to the young boys in his charge."¹¹⁰

5. New Jersey Supreme Court The New Jersey Supreme Court affirmed.¹¹¹ It noted that New Jersey's LAD had been interpreted to apply to more than just "places" for almost 25 years¹¹² and the legislature had never saw fit to modify this ruling; indeed, the legislature had instructed that the statute should be construed liberally to effect its purposes.¹¹³ The court stated that "[o]ur courts have repeatedly held that when an entity invites the public to join, attend, or participate in some way, that entity is a public accommodation within the meaning of the LAD."¹¹⁴ The court stated that the BSA was a public accommodation because of its extensive solicitation activities and close relationship with other recognized public accommodations.¹¹⁵

On the BSA's freedom of association claim, the court held that the BSA was not an intimate association due to its large size, nonselectivity, and public meetings.¹¹⁶ It found that the organization's freedom of expressive association was not infringed because "the statute does not have a significant impact on Boy Scout members' ability to associate with one another in pursuit of shared views,"¹¹⁷ since the BSA does not associate for the purpose of disseminating the belief that homosexuality is immoral, discourages its leaders from discussing any sexual issues, and includes members with widely-varying views on homosexuality.¹¹⁸ The court also distinguished Hurley by stating that "Dale does not come to meetings 'carrying a banner' . . . [he] has never used his leadership position or membership to promote homosexuality, or any message inconsistent with Boy Scout policies."¹¹⁹

6. U.S. Supreme Court Majority Opinion A majority of the Supreme Court¹²⁰ held that forcing the BSA to admit Dale as a member would violate the organization's First Amendment right to freedom of expressive association.¹²¹ In an opinion by Chief Justice Rehnquist, the Court began by noting that "[f]reedom of association . . . plainly presupposes a freedom not to associate,"¹²² and the forced inclusion of an unwanted member could violate this freedom if it seriously affected the group's ability to advocate a viewpoint and was not justified by a compelling state interest that could not be achieved in a less restrictive manner.¹²³

Next, the Court quoted at length excerpts from the BSA's Mission Statement¹²⁴ ("It is the mission of the Boy Scouts . . . to instill values in young people"), Scout Law¹²⁵ ("A Scout is . . . CLEAN"), and Oath¹²⁶ ("I will do my best . . . [t]o keep myself...morally straight"), and stated that "thus, the general mission of the Boy Scouts is clear: 'to instill values in young people.'"¹²⁷ The Court stated that it "seems indisputable that an organization that seeks to transmit such a system of values engages in expressive activity."¹²⁸ The Court also stated that it must undertake a limited analysis of the BSA's views on homosexuality to determine if "the forced inclusion of Dale . . . would significantly affect [its] ability to advocate public or private viewpoints."¹²⁹ Although the Scout Law and Oath "do not expressly mention sexuality or sexual orientation,"¹³⁰ and the requirement that a Scout be "morally straight" and "clean" are "by no means self-defining,"¹³¹ the Court stated the BSA's 1978 position paper¹³² ("We do not believe that homosexuality and leadership in Scouting are appropriate"), 1991 position statement¹³³ ("[H]omosexuals do not provide a desirable role model for Scouts"), and consistent views on homosexuality during litigation in the 1980s was sufficient proof of the BSA's sincere belief that homosexuality was inconsistent with Scouting values¹³⁴ and that "it is not the role of the court to reject a group's expressed values because they disagree with those values or find them internally inconsistent."¹³⁵

After finding that the BSA had a sincere belief that homosexuality was inconsistent with its values, the Court turned to the question of whether Dale's inclusion would burden the BSA's desire to "not promote homosexual conduct as a legitimate form of behavior."¹³⁶ The Court stated that it should give deference to an organization's view of what would impair its expression and that "Dale's presence in the Boy Scouts would . . . force the organization to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior."¹³⁷

Although the New Jersey Supreme Court had held that the BSA "do[es] not associate for the purpose of disseminating the belief that homosexuality is immoral,"¹³⁸ and therefore would not be burdened by Dale's inclusion, the U.S. Supreme Court held that associations do not have to associate for the "purpose" of advocating a certain viewpoint in order to be protected, so long as they engage in expressive conduct that could be burdened.¹³⁹ The Court drew an analogy to Hurley,¹⁴⁰ where parade organizers were allowed to exclude a GLBT contingent even though the parade had nothing to do with sexual orientation. The Court stated that the BSA's failure to actively expound the view that homosexuality was immoral does not prevent them from being constitutionally protected because "teach[ing] only by example . . . does not negate the sincerity of its belief."¹⁴¹ The Court stated that it was irrelevant that members of the BSA disagree with the policy of excluding homosexuals because "[t]he Boy Scouts take an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes."¹⁴²

Finally, the Court concluded, without elaboration, that "[t]he state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association."¹⁴³

7. Justice Stevens' Dissent In a dissenting opinion, Justice Stevens¹⁴⁴ argued that forcing the BSA to include Dale did not seriously burden any of its goals or force it to send a message that it did not wish to send.¹⁴⁵ Like the majority, Justice Stevens' dissent also quoted extensively from the Scout Oath, Law, and Mission Statement.¹⁴⁶ The dissent noted that these materials, taken together, encourage a diverse membership limited only by age and gender.¹⁴⁷ The dissent discussed the BSA's requirement that members be "morally straight" and "clean," and stated that "[i]t is plain as day that neither one of these principles . . . says the slightest thing about homosexuality."¹⁴⁸ Justice Stevens emphasized the fact that Scoutmasters are directed to refrain from discussing sexual matters with curious youths and instead are told to refer them to parents or religious leaders.¹⁴⁹ He also attacked the majority's use of the 1978 policy statement as evidence of the BSA's position by noting that it contained a provision that the BSA would obey all anti-discrimination laws, was never distributed beyond the Executive Council, and that, in any event, "simply adopting such a policy has never been considered sufficient, by itself, to prevail on a right to associate claim."¹⁵⁰ Because later policy statements were made after Dale's exclusion, the dissent argued that they were irrelevant.¹⁵¹

Next, Justice Stevens compared the BSA's refusal to admit homosexuals to the Jaycees' and Rotary Club International's refusal to admit women and stated that there was not sufficient grounds to distinguish them because in none of the three cases was a serious burden imposed on the organization's ability to convey its message.¹⁵² He stated that "[t]he evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality."¹⁵³ Justice Stevens was also critical of the majority's willingness to simply adopt the BSA's word for what its goals and views were.¹⁵⁴ In his view, since the BSA did not have a clear and unambiguous policy on homosexuality to begin with, forcing them to include Dale could not seriously burden their right of expressive association.¹⁵⁵

The dissent also attempted to distinguish Hurley by arguing that it was a case where an organization's freedom to propound a certain view was endangered; the parade organizers in that case did not exclude homosexuals per se, they merely refused to allow them to march as a separate contingent with a banner and distribute fliers.¹⁵⁶ Finally, Justice Stevens noted with distaste the prejudice and stereotypical views much of society holds about homosexuality and stated that "such prejudices are still prevalent and . . . they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect."¹⁵⁷

8. Justice Souter's Dissent Justice Souter filed a brief dissenting opinion¹⁵⁸ in which he noted that although a decline in stereotypical thinking about homosexuality was "laudable,"¹⁵⁹ the desirability of a group's view could not influence its First Amendment right to freedom of association. Justice Souter argued that the BSA had not made out such a claim because of "its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message."¹⁶⁰

III. ANALYSIS

Before Dale, the right-to-exclude cases were not controversial, at least in so far as members of the Supreme Court were concerned. There was not a single dissenting opinion in any of the four cases leading up to it (i.e., Roberts, Rotary, New York State Club Ass'n, and Hurley) and this seemed to be a sign of some stability in an otherwise politically-charged and ideologically-divided Court. What then, to make of the 5-4 Dale decision? Unless the case was decided purely on politics (a distinct possibility), either the majority or the dissent erroneously construed what was apparently clear legal precedent. After examining the likely effects of the case on future litigation, this section argues that the case was wrongly decided under the Roberts framework.

A. Effect of Dale on Future Litigation It is difficult to determine what effect the Dale decision will have on future right-to-exclude cases because freedom of association claims are heavily fact-intensive, requiring a thorough examination of the type of expression an organization is engaged in and whether it will be burdened by inclusion of the plaintiff. The fact that it was a 5-4 decision involving the possible forced inclusion of a member of one of this nation's most feared minority groups (homosexuals) into one of the nation's most cherished "patriotic" organizations (the BSA) will presumably limit the deference future courts give it. However, it is clear that the Dale majority set forth some important principles of general applicability for future right-to-exclude cases.

First, the majority made it clear that the expressive views of an organization should be determined by referring to its official policies--differing views among an organization's membership is irrelevant.¹⁶¹ Second, ambiguous policy statements should be resolved in the organization's favor and inconsistent statements do not undermine the sincerity of its belief.¹⁶² In essence, courts should take the organization's word for it on what it believes. Finally, the majority implicitly states that the mere presence of an unwanted individual could inhibit an organization's ability to propound a certain point of view.¹⁶³ Arguably, application of these principles will make it easier for an organization to succeed on a freedom of association claim.

B. A Backwards Step: The Dale Majority Opinion Because the New Jersey Supreme Court's opinion in Dale received extensive discussion in the secondary literature,¹⁶⁴ this Note does not focus on policy arguments or the political desirability of legal protection for GLBT individuals. Instead, this section contains an argument that the majority opinion in Dale is inconsistent with prior case precedent and, if carried to its logical extreme, would result in the evisceration of current public accommodations laws. This section is divided into three parts, one for each of the steps in the Roberts test.¹⁶⁵

1. Is the Organization Engaged in Expressive Association?¹⁶⁶ As the dissenting opinion pointed out,¹⁶⁷ one of the most glaring errors in the majority's opinion was their willingness to simply take the BSA's word for the fact that it was engaged in expressive association on the subject of homosexuality. Relying solely on policy statements by the BSA's Executive Council, the majority stated that "[t]he Boy Scouts take an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes."¹⁶⁸ The Court relied primarily on the BSA's assertion that homosexual Scouts was prohibited by the requirements in the Scout Handbook that Scouts be "morally straight" and "clean."¹⁶⁹

The problem with the Court's position is that it gives too much deference to an organization's litigation stance and does not comport with prior precedents. In Roberts, the Jaycees had a long-standing policy against allowing women members because members believed they could not accomplish their goals in a gender-mixed environment.¹⁷⁰ Similarly, Rotary Club International had a long-standing policy against female members and believed it could not conduct activities in foreign countries if forced to include them.¹⁷¹ However, the Court in those two cases looked beyond the mere fact that an organization had a policy and asked whether there was a "logical nexus between the group's discriminatory membership policies and the group's purpose or message."¹⁷²

In reality, the BSA simply has no purpose or goal at all regarding homosexuality. Members associate for the purpose of learning woodcraft, good sportsmanship, and similar virtues and skills. As one commentator said, "assistant scoutmasters teach boys how to tie knots, not that homosexuality is immoral."¹⁷³ As the majority noted, Scouts do not have to assemble for the purpose of disseminating the belief that homosexuality is immoral,¹⁷⁴ but to gain First Amendment protection under the freedom of expressive association the BSA has to at least transmit this message in one form or another.

In Richardson v. Chicago Area Council of the Boy Scouts of America,¹⁷⁵ a homosexual job applicant brought a discrimination suit against the BSA under Chicago's public accommodations law. The trial judge, after examining "literally thousands of pages of Scouting literature" and listening to "intelligent, articulate, and sincere witnesses presented by both sides of this controversy" concluded that "ideas about the morality or immorality of one's sexual orientation are absent from the vision of what Scouting stands for."¹⁷⁶ He noted that "[n]ot a single witness testified that as part of his Scouting experience, he was taught that homosexuality was immoral"¹⁷⁷ and that all witnesses agreed that there was not a single BSA publication that defined the terms "morally straight" and "clean" to refer to sexual orientation.¹⁷⁸

Prior to Dale's expulsion from the BSA, the only official BSA statement on homosexuality was contained in a 1978 policy statement¹⁷⁹ (never distributed beyond the Executive Council) and an isolated paragraph in the 1986 Boy Scout Handbook which said "[i]ncidents of sexual experimentation may occur in the troop could run from the innocent to the scandalous. They call for a private and thorough investigation, and frank discussion with those involved. It is important to distinguish between youthful acts of innocence, and the practices of a homosexual who may be using his Scouting association to make contacts. A boy of 15 or so cannot be assumed to be acting out of innocence. Assist him in securing professional help."¹⁸⁰ Note that this statement does not say that homosexuality isn't "morally straight" or "clean" and it does not order or advise that the Scoutmaster expel the homosexual boy. It seems to simply be a warning for Scoutmasters to be wary of predatory individuals using the BSA for sexual contacts. The fact that the BSA does not expel heterosexuals who speak favorably of GLBT rights¹⁸¹ further undermines any claim that opposition to homosexuality is an "expressive goal" of the BSA.

As the majority correctly asserts, protection under the First Amendment does not require that a viewpoint be rational, effective, or even consistent.¹⁸² However, it must at least be sincere. It is well-known that exemption from some laws of general applicability for religious reasons (such as a conscientious objector's refusal to enter the draft, or an Amish family's resistance to public education) is possible only if the religious belief is sincerely held. To allow otherwise would invite a rash of pretextual claims that would seriously undermine the law's effectiveness.¹⁸³

For example, in Brown v. Dade Christian Schools, Inc.,¹⁸⁴ a private Christian school sought the right to exclude black students by alleging that it held a sincere religious belief that integration was immoral. Instead of simply taking school officials word on its belief, the court conducted an independent examination of the evidence and held that the school's "religious belief" was a mere pretext for an otherwise secular discriminatory policy: "[T]he absence of references to school segregation in written literature stating the church's beliefs, distributed to members of the church and the public by leaders of the church and administrators of the school, is strong evidence that school segregation is not the exercise of religion."¹⁸⁵ The court noted that "if belief in school segregation was religious in nature, neither the officers of the school nor the congregation of the church were aware of it."¹⁸⁶ Similarly, if opposition to homosexuality was a sincerely held belief of the BSA, neither its members nor the general public realized it at the time of Dale's expulsion.¹⁸⁷

As the court in Richardson said, "an organization with a defined body of doctrine cannot just choose to interpret its goals differently from their stated meaning merely to justify a discriminatory . . . policy. There must be an element of 'bona fideness' in the interpretation."¹⁸⁸ Allowing the BSA to claim that it is engaged in expressive association on the issue of homosexuality simply because of a few isolated policy statements internally circulated by its Executive Council sets a dangerous precedent--"[t]he argument that [a] court should not determine whether a group's message is actually part of its reason for existing could . . . devastate states' abilities to end discrimination against minority groups."¹⁸⁹ If public accommodations statutes are to be more than parchment barriers against discrimination, a court must explore whether the discriminatory policy is actually related to a sincerely held view of the organization or is a pretext designed merely to justify prejudicial and stereotypical views.

2. Would the Organization's Expression Be Seriously Burdened by the Member's Inclusion? The majority opinion argued that if the BSA "teaches . . . by example"¹⁹⁰ that homosexuality is wrong then "Dale's presence would . . . force the organization to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior."¹⁹¹ In some instances, the majority is correct that the mere presence of an otherwise-excluded individual would compromise the views of an organization. For example, members of the NAACP once brought suit under a public accommodations law to be included in a march by the Ku Klux Klan.¹⁹² Obviously, since racial separation is the primary goal of the KKK, its message would be compromised if it had to include black members. As the court said, "[i]f ever there was a case where the membership and the message was co-extensive, it is here."¹⁹³ However, Dale's forced inclusion into the BSA is not this type of situation. Even assuming the BSA does engage in expressive association on homosexuality, Dale's presence would not seriously burden this message for several reasons.

First, status is not the same as advocacy. Although one commentator argues that "[t]o be an avowed homosexual is to assert that a homosexual lifestyle is a political and moral right,"¹⁹⁴ being open and honest about one's factual status is not the same thing as propounding the view that one's status is preferable to others or is even desirable at all. Admitting that one is white, female, or American is not the same thing as advocating White Supremacy, feminism, or patriotism. Similarly, answering a factual question about one's sexual orientation does not require a belief that the sexual orientation is desirable. In somewhat stronger language, "[c]ourts that treat a gay person's openness about his or her identity as 'advocacy' again fall prey to heterosexist, if not homophobic, biases, and, in the process, grant constitutional protection to 'overbroad assumptions' based on nothing more than stereotypical notions that the Supreme Court warned against in Roberts."¹⁹⁵

Second, the sheer size of the BSA makes it unlikely that the general public or even its own members will regard the presence of an individual as the organization's endorsement of his or her status.¹⁹⁶ The BSA currently has over 5 million members and its views are not likely to be clouded by the addition of a handful of homosexual Scouts.

One commentator's fear that "[b]y being forced to admit a homosexual activist as a leader, the Boy Scouts opens itself up to the public interpreting this action as its tacit approval of homosexuality"¹⁹⁷ is unwarranted because inclusion of an unwanted member is less likely to burden an organization's views when it has a good excuse--"[a]ll that an organization can really be understood to have 'said' by retaining someone protected against discrimination by the civil rights law is that the organization obeys the law."¹⁹⁸ For example, when a court ordered the integration of an all-white private school in Brown v. Dade Christian Schools, Inc.,¹⁹⁹ it stated that "[the school's] argument that admission of blacks would itself convey an undesirable message . . . carries little weight . . . [a]lthough...voluntary enrollment of blacks might communicate such a message, desegregation in response to a [court order] would not."²⁰⁰ Had the BSA been forced to include Dale by court order, his presence would have said very little about the organization's views.

Finally, the majority opinion ignored the fact that any incidental burden on the BSA's views regarding homosexuality could be easily mitigated by the organization. For example, in all future Scout handbooks the group could place a statement in large bold print such as: "The Boy Scouts of America believes that homosexuality is inconsistent with Scouting values; however, the organization follows all applicable state and federal law." Such a message would probably more than compensate for any burden Dale's presence would present. A view similar to this was taken by the Supreme Court in Pruneyard Shopping Center v. Robins,²⁰¹ where a privately owned shopping mall was forced to allow petitioning by private individuals. Although the mall owner feared that the public would think he was propounding the petitioners message, the Court stated that "[the mall operator] can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law."²⁰² The fact that Scoutmasters are directed not to speak about sexuality at all²⁰³ further limits any "damage" Dale's presence could do, and, if the organization wished it, he could even be required to teach that homosexuality was immoral.

3. Does the State's Compelling Interest in Ending Discrimination Outweigh the Burden Imposed on the Organization? In Roberts, seven members of the Supreme Court agreed that a state's commitment "to eliminating discrimination and assuring its citizens equal access to publicly available goods and services . . . plainly serves compelling state interests of the highest order."²⁰⁴ In Rotary, this statement was repeated by the Court.²⁰⁵ Notably absent from this statement was the requirement that only the elimination of discrimination on the basis of sex or race, for example, serves compelling state interests. Discrimination on the basis of sexual orientation, like other forms of discrimination unrelated to merit, is detrimental to society and states therefore have a strong public policy interest in eliminating it. The New Jersey Supreme Court stated that the goal of its public accommodations law is the eradication of "the cancer of discrimination of all types from our society,"²⁰⁶ and in enacting this statute the New Jersey legislature stated that "discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic state."²⁰⁷

Although the Supreme Court has never stated such a rule, at least one commentator has argued that states only have a compelling interest in ending discrimination against members of a "suspect class."²⁰⁸ However, this confuses two conceptually distinct ideas. The idea of a "suspect class" is generally used in equal protection cases to decide whether a court must apply a strict (or intermediate) scrutiny test as opposed to a mere rational basis test. In such cases, the state is seeking to justify discrimination against a certain group. In cases like Dale, however, the state is seeking to end discrimination against a certain group. Certainly the latter is much more preferable than the former, and it follows that courts should be more deferential to state action brought under public accommodations laws.

The argument could be made that homosexuals as a group hold many of the same characteristics as women or racial minorities. Each has a long history of being subject to discrimination, unfair laws, violence, and political powerlessness. Race, sex,and sexual orientation are all immutable characteristics. The argument could also be made that homosexuals as a minority group are different in many ways as well; for example, homosexuals can hide who they are easily, but are statistically a much smaller segment of the population than either women or most racial minorities. However, it seems unproductive to try to wage minority groups against each other in this way to determine which merits protection. The fact remains that each group has a long history of oppression and states therefore have a compelling interest in protecting each of them from invidious discrimination. When balanced against the slight infringement (if any) Dale's presence would have on the BSA's views, it seems clear that the majority erred in its decision.

IV. CONCLUSION

The effect of the Dale decision on future right-to-exclude cases is difficult to determine because of its unique mix of one of the nation's most divisive issues with one of the nation's most cherished institutions. This Note has argued that the Dale majority deviated from prior precedents in holding that the BSA was engaged in expressive activity solely by referring to official policy statements. It has also argued that Dale's inclusion would not substantially burden the BSA's ability propound its views and that any incidental burden would be justified by New Jersey's compelling interest in ending discrimination on the basis of sexual orientation.

Although the litigation is over, for the BSA the battle has just begun. Responses to the BSA's discriminatory policy or the Dale decision have included trivial things like one school system's forbidding the organization from having special in-school communication privileges²⁰⁹ and a city denying them the free use of a dock.²¹⁰ However, more serious repercussions have occurred, including the State of Connecticut²¹¹ and the City of San Francisco²¹² barring employee-payroll deductions for the BSA. The City of Chicago agreed to end all funding for the BSA until it ends it discriminatory practices²¹³ and the City of Tucson is considering doing the same.²¹⁴ Private corporate sponsors such as Levi Strauss, Wells Fargo Bank, and BankAmerica ended sponsorship of the organization years ago,²¹⁵ and more are sure to follow as the BSA's practices become better known. In recent weeks, the BSA Headquarters has been the site of protests,²¹⁶ House members wrote a letter to President Clinton calling on him to resign as honorary head of the organization,²¹⁷ and legislation has been introduced to strip the group's federal charter.²¹⁸ The effect of these and future responses to the Dale decision is uncertain, but it seems clear that the BSA will have an increasingly difficult time justifying its ban in the face of an increasingly tolerant society, especially when similar groups like the Girl Scouts, 4-H Clubs, and Boy Scouts of Canada have nondiscrimination policies already in place.²¹⁹

For James Dale, the Supreme Court's decision is a chance to move on with his life. Expelled in 1990 at the age of twenty, Dale has spent the last 10 years of his life involved in ugly and contentious litigation. It is sadly ironic that this epic struggle began with Dale's attendance at a seminar on the psychological health problems of GLBT adolescents. It seems clear that the BSA would rather perpetuate these problems in a new generation of children instead of changing its discriminatory practices.

By substituting Dale as the plaintiff, the words of Justice Mosk of the California Supreme Court, considering another case of the BSA's discrimination on the basis of sexual orientation, seem fitting: "That the law does not prohibit the [Boy Scouts of America] from shutting [Dale] out cannot obscure the fact that he is the very kind of person whom it should receive most eagerly--a person whom it has itself honored as an Eagle Scout. Regrettably, the situation will remain such until the law changes. Or, perhaps, until the ideals of scouting transforms its conduct."²²⁰