Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Having determined that the Boy Scouts is an expressive association and that the forced inclusion of James Dale [an avowed homosexual] would significantly affect its expression, we inquire whether the application of New Jersey’s [anti-discrimination] law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts freedom of expressive association. We conclude that it does.

The Boy Scouts assert that it “teaches that homosexuality is not morally straight” and that it does “not want to promote homosexual conduct as a legitimate form of behavior.” Dale was a co-president of a gay and lesbian organization at college and remains a gay rights activist. Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior…. A state [anti-discrimination] requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization’s right to oppose or disfavor homosexual conduct.

Majority Opinion, Boy Scouts of America v. Dale,

(U.S. Supreme Court, June 28, 2000).

Divided Court

A bitterly divided U.S. Su-preme Court ruled this summer that the Boy Scouts of America has the constitutional right to exclude homosexuals as troop leaders. In a close 5-4 decision written by Chief Justice Rehnquist, the Court overruled New Jersey’s highest court, which held last year that a state public accommodation law prohibited the Boy Scouts from “discrimination because of affectional or sexual orientation.” The New Jersey supreme court ruling last year forbidding the Boy Scouts from expelling a homosexual activist troop master quickly gained national notoriety and became a cause célèbre for the homosexual subculture. The Boy Scouts immediately appealed the adverse ruling to the U.S. Supreme Court, which held that the state’s interests embodied in anti-discrimination laws did not justify such a “severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”

The Boy Scouts

The Boy Scouts of America is a private, not-for-profit organization, whose mission statement declares that its purpose is to “serve others by helping to instill values in young people and to prepare them to make ethical choices over their lifetime….” The “Scout Oath and Law” declares that a member must be “morally straight” and “clean.” In 1978, the Boy Scouts adopted a position statement declaring that the organization “believes that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and clean in word and deed….”

James Dale joined the Boy Scouts as an eight-year old in 1978. In 1989 Dale applied for adult membership and became an assistant scoutmaster. While a college student at Rutgers University in 1992, he became the president of the Rutgers University Lesbian/Gay Alliance and otherwise publicly identified himself in a local newspaper interview as a homosexual activist. Upon learning of his homosexual activities the Boy Scouts revoked his membership in the local New Jersey Chapter.

Dale filed suit, alleging that the Boy Scouts had violated New Jersey’s public accommodation law, which prohibits “discrimination” based on “sexual orientation.” The New Jersey Supreme Court ruled in Dale’s favor, declaring that Dale’s membership would not affect “in any significant way” the organization’s ability to carry out its mission and purpose.

Anti-discrimination Laws

As a result of the feminist movement in the 1970s and “gay rights” activism more recently, many states (and cities) have adopted statutes and ordinances that outlaw discrimination in “places of public accommodation,” such as restaurants, apartment buildings, retail shops, etc. Such anti-discrimination laws forbid employers, landlords, restaurant owners, and others from denying “advantages, facilities or privileges” to anyone because of race, age, sex, or marital status.

The New Jersey law at issue in the Dale case also outlawed discrimination based on “affectional or sexual orientation.” The New Jersey courts held that the Boy Scouts organization was “a place of public accommodation,” and, moreover, was not exempt from the law simply because it engaged in “expressive activity.” The Boy Scouts presumably violated the law when it revoked Dale’s membership solely because of his “sexual orientation.” The New Jersey supreme court declared that it was “not persuaded … that a shared goal of Boy Scout members is to preserve the view that homosexuality is immoral.”

The Right of Association

The U.S. Supreme Court disagreed and held that the New Jersey anti-discrimination law was trumped or superseded by an important constitutional right of the Boy Scouts organization—the right of expressive association. The Court held that there is a fundamental right “to associate with others in pursuit of a wide variety of political, education, religious, and cultural ends.” This right, explained the Court, is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, views.

Moreover, forcing a group to accept certain members it does not desire may impair the ability of the group to express the views it intends to express. In other words, said the Court, the forced inclusion of an unwanted member “infringes the group’s freedom of expressive association” if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.

Applying the principles of the freedom of expressive association to the Boy Scouts’ exclusion of an avowed homosexual, the Court held that Dale’s presence in the Boy Scouts would force the organization to send a message it did not want to send, viz., that homosexual conduct is an acceptable or legitimate form of behavior.

But assuming the Boy Scouts organization enjoys the constitutional freedom of the right of expressive association, what about the state’s interest in prohibiting “discrimination” based on “sexual orientation”? The Court held that, notwithstanding the state’s interest in discouraging discrimination, those interests “do not justify such a severe intrusion on the Boy Scouts’ right to freedom of expressive association.” Accordingly, the judgment of the New Jersey Supreme Court was reversed, and the right of the Boy Scouts to expel homosexuals was affirmed.

The Dissent

Four of the nine Supreme Court justices, however, filed a vigorous and lengthy dissent, essentially contending that state anti-discrimination laws have a noble and “courageous” purpose which did not abridge any constitutional right of the Boy Scouts. The minority opinion also suggested that the Boy Scouts’ views on homosexuality were vague and equivocal (“The Boy Scouts’ inability to make its position clear and its failure to connect its alleged policy to its expressive activities is highly significant”).

Secondly, the dissent argued that the right to associate is not “absolute,” but infringements on that right may be justified by regulations serving compelling state interests. The dissent reviewed the history of anti-discrimination laws and declared that such laws were necessary to root out “unfavorable” prejudices “nourished by sectarian doctrine” and “mere adherence to traditional ways of thinking” about “unfamiliar classes” of people such as homosexuals.

Thirdly, the dissent argued that even though Dale was an avowed homosexual, his forced membership would not significantly affect the message of such a large, diverse, and open organization such as the Boy Scouts, which currently has more than one million adult members. Finally, the dissent made much of its observation that homosexuality has gained greater societal acceptance, footnoting the fact that most recently the major automobile manufacturers have extended employment benefits to homosexual partners, evidencing, in the dissent’s view, a “laudable decline in stereotypical thinking on homosexuality.”

Comment

The Boy Scouts of America v. Dale case is a landmark decision and arguably one of the most significant decisions by the Supreme Court in the last decade. Although the close (5-4) decision is perhaps somewhat ominous, Reformed Christians can be relieved that at least five Supreme Court justices affirmed an organization’s constitutional right to exclude those who represent and promote views inconsistent with the group’s stated goals and purposes.

This constitutional right of expressive association, which now includes the freedom to expel unwanted members, is of fundamental importance to private Christian organizations such as our parental schools and colleges. It is now clear that a Christian school or college, because it is an “expressive association,” may expel members, teachers, and others who would interfere with the school’s choice not to propound a view contrary to its beliefs.

Moreover, the Court clearly held that this right of expressive association particularly applies when the organization or association in question promotes views that are unpopular. Indeed, one of the most reassuring sentences in Chief Justice Rehnquist’s opinion states: “The fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

It should be noted, however, that the Court made clear that this constitutional right of expressive association has several qualifications. First, the organization must be an “expressive organization,” that is, one engaged in some form of expressive activity. Secondly, the organization’s goals and mission statement must clearly state its views and purposes in a precise and unequivocal manner. Thirdly, the membership of a person may be denied or revoked, notwithstanding an ostensible violation of anti-discrimination laws, if the forced inclusion would “significantly affect” the organization’s right to promote its views.

Accordingly, evangelical churches, schools, and other Christian organizations engaged in political, social, educational, and religious pursuits may be assured that anti-discrimination laws may not result in the forced inclusion of unwanted persons when the presence of such a person affects in a significant way the organization’s ability to advocate its own public or private viewpoints.