Brief Fact Summary. The Boy Scouts revoked the membership of an openly gay Scout leader, claiming it was expressive association.
Synopsis of Rule of Law. Under the First Amendment’s freedom of expressive association, a group does not need to accept members whose presence impedes their ability to advocate their viewpoint.
Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics.View Full Point of Law
Issue. May a group exclude homosexuals?
To determine whether a group is protected by the First Amendment expressive association right, a group must be engaged in expressive association. An association that attempts to transmit a value system is engaged in expressive activity.
Forced inclusion of people into a group infringes on the group’s expressive association if the presence of those people would impede the group’s ability to advocate its views. Defendant asserts that homosexuality is inconsistent with its views and values, particularly those values embodied in the Scout Oath and Law by the terms ‘morally straight’ and ‘clean.’ Defendant teaches that homosexual conduct is not morally straight.
Plaintiff is openly gay, and his presence in Defendant would force the organization to send the message that they support homosexuality. So forcing Defendant to include Plaintiff would burden their desire not to promote homosexuality.
Since Defendant is an expressive association and forcing the inclusion of Plaintiff would burden its rights to oppose homosexuality, Defendant’s freedom of association right allows them to exclude him.
Dissent. The terms ‘morally straight’ and ‘clean’ have nothing to do with homosexuality, so the Boy Scouts have not proclaimed any anti-gay philosophy. Also, the Boy Scout Handbook does not mention homosexuality. Joining the Boy Scouts is not symbolic speech. Homosexuals are being singled out for special First Amendment treatment.
Discussion. An expressive association does not need to accept members whose views differ strongly from their own.