From: Stu Conrad (stucon@SKY.NET)
Date: Wed Jun 28 2000 - 21:23:02 CDT
I thought this might be of interest to the list. I do this
rarely, so forgive any errors in posting. For those interested,
the link below should take you to the full text of the decision
as released this a.m. YIS
_____________________________________________________
Stuart W. Conrad, Esq., Attorney and Counselor at Law
Finnegan, Conrad & Peterson, L.C.
1209 Penntower Office Center
3100 Broadway
Kansas City, Missouri 64111
Office Voice: (816)753-1122
Office Fax: (816)756-0373
"Legis vigilantibus non dormientibus, subveniunt"
<stucon@fcplaw.com>
BOY SCOUTS OF AMERICA v. DALE (99-699)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/99-699.ZS.html
Argued April 26, 2000 -- Decided June 28, 2000
Opinion author: Rehnquist
===============================================================
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Jersey troop was revoked when the Boy Scouts learned that he is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. Irish-American 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 admit 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 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 competing interests of the Boy Scouts and
the State. Rather, the Court applies an analysis similar to
the traditional First Amendment analysis it applied in Hurley.
A state requirement that the Boy Scouts retain Dale would
significantly burden the organization's right to oppose or
disfavor homosexual conduct. The state interests embodied in
New Jersey's public accommodations law do not justify such a
severe intrusion on the freedom of expressive association. In
so ruling, the Court is not guided by its view of whether the
Boy Scouts' teachings with respect to homosexual conduct are
right or wrong; public or judicial disapproval of an
organization's expression does not justify the State's effort
to compel the organization to accept members in derogation of
the organization's expressive message. While the law may
promote all sorts of conduct in place of harmful behavior, it
may not interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one,
however enlightened either purpose may seem. Hurley, supra, at
579. Pp. 5-17.
160 N. J. 562, 734 A. 2d 1196, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in
which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined.
Stevens, J., filed a dissenting opinion, in which Souter,
Ginsburg, and Breyer, JJ., joined. Souter, J., filed a
dissenting opinion, in which Ginsburg and Breyer, JJ., joined.
