James Dale was an active, accomplished member of BSA through childhood and early adulthood. When he entered college, he came out as gay and became involved in gay rights activism. Shortly after, BSA revoked his membership, citing BSA policies that specifically forbid membership to homosexuals. Dale sued BSA, arguing that they had unlawfully discriminated against him on the basis of his sexual orientation.
A group’s First Amendment rights of expressive association are infringed when an unwanted person is forcefully included and their presence affects the group’s ability to advocate public or private viewpoints.
James Dale entered BSA as an eight year old in 1978. He ultimately achieved the rank of Eagle Scout, and then ae applied for and was accepted as an adult member. He became an assistant scoutmaster in 1989. Around this same time, he entered college and came out as gay. He became involved in gay rights’ activism and advocacy. A year later, in 1990, BSA revoked his membership, citing BSA policies that specifically forbid membership to homosexuals.
In 1992, Dale filed a complaint in New Jersey court, arguing that BSA violated New Jersey public accommodations law by discriminating against him on the basis of sexual orientation. The New Jersey Supreme Court held that the BSA was a place of public accommodation and that it had to abide by public accommodations laws.
Does the New Jersey public accommodations law violate the BSA First Amendment right of association in this case?
Yes, in this case, the New Jersey law violates the First Amendment right to association.
Justice Stevens (with Souter, Ginsburg, and Breyer)
The BSA’s actual definitions of “morally straight” and “clean” have nothing to do with sexual orientation. BSA also rejects all sex education, leaving it to school and home.
New Jersey specifically drafted a broad public accommodations law to address this sort of discrimination.
The BSA has simply engaged in an exclusionary membership policy and has no true goal of disapproving of homosexuality, and their materials should not be used to support this decision. This is just creating a constitutional shield for discrimination.
A group’s First Amendment rights are infringed when an unwanted person is forcefully included and their presence affects the group’s ability to advocate public or private viewpoints.
Freedom of association is not absolute. To determine whether a group is protected by freedom of association, must ask whether the group engages in some form of expression (public or private). The BSA’s mission is to “instill values in young people.” This system of instilling values is expressive activity.
Then the Court must ask whether the forced inclusion of Dale significantly affects BSA’s ability to advocate viewpoints. To answer this, the Court must look at the BSA’s view of homosexuality. BSA argues that homosexuality is add odds with its mission to teach boys to be “morally straight” and “clean.” The Court must give deference to the group in both their expression and what they view affects their expression. Here, Dale is active in the gay community, and the Court accepts that this negatively affects the BSA messaging.