BOY SCOUTS OF AMERICA ET AL. v. DALE
No. 99-699
SUPREME COURT OF THE UNITED STATES
June 28, 2000
530 U.S. 640
George A. Davidson argued the cause for petitioners. With him on the briefs were Carla A. Kerr, David K. Park, Michael W. McConnell, and Sanford D. Brown.
Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, Jon W. Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W. Haynes, and Lewis H. Robertson.*
*Briefs of amici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W. Treene; for the California State Club Association et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center
Briefs of amici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the city of Atlanta et al. by Peter T. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman, Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A. Hutner, and Louise Renne; for the American Association of School Administrators et al. by Mitchell A. Karlan; for the American Bar Association by William G. Paul and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara L. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress by Marc D. Stern; for the American Psychological Association by Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil-
Michael D. Silverman filed a brief for the General Board of Church and Society of the United Methodist Church et al.
Opinion
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey‘s public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey‘s public accommodations law in this way violates the Boy Scouts’ First Amendment right of expressive association. We hold that it does.
I
James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council‘s Cub Scout Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accоunts, Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting‘s highest honors.
Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and
Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth Council‘s decision. Kay responded by letter that the Boy Scouts “specifically forbid membership to homosexuals.” App. 137.
In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy Scouts had violated New Jersey‘s public accommodations statute and its common law by revoking Dale‘s membership based solely on his sexual orientation. New Jersey‘s public accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation.
The New Jersey Superior Court‘s Chancery Division granted summary judgment in favor of the Boy Scouts. The court held that New Jersey‘s public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation, and that, alternatively, the Boy Scouts is a distinctly private group exempted from coverage under New Jersey‘s law. The court rejected Dale‘s common-law claim, holding that New Jersey‘s policy is embodied in the public accommodations law. The court also concluded that the Boy Scouts’ position in respect of active homosexuality was clear
The New Jersey Superior Court‘s Appellate Division affirmed the dismissal of Dale‘s common-law claim, but otherwise reversed and remanded for further proceedings. 308 N. J. Super. 516, 706 A. 2d 270 (1998). It held that New Jersey‘s public accommodations law applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts’ federal constitutional claims.
The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale‘s membership based on his avowed homosexuality. After considering the state-law issues, the court addressed the Boy Scouts’ claims that application of the public accommodations law in this case violated its federal constitutional rights “to enter into and maintain... intimate or private relationships... [and] to associate for the purpose of engaging in protected speech.” 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary Int‘l v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association, the court concluded that the Boy Scouts’ “large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not ‘sufficiently personal or private to warrant constitutional protection’ under the freedom of intimate association.” 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive association, the court “agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development
We granted the Boy Scouts’ petition for certiorari to determine whether the application of New Jersey‘s public accommodations law violated the First Amendment. 528 U. S. 1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This right is crucial in preventing the majority from imposing its views on groups that would
The forced inclusion of an unwanted person in a group 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. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden “by regulations adopted to serve compelling state interests, unrelated to the suppression of ideаs, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623.
To determine whether a group is protected by the First Amendment‘s expressive associational right, we must determine whether the group engages in “expressive association.” The First Amendment‘s protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.
Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we are obligated to independently review the
“It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.
“The values we strive to instill are based on those found in the Scout Oath and Law:
“Scout Oath
“On my honor I will do my best
“To do my duty to God and my country
“and to obey the Scout Law;
“To help other people at all times;
“To keep myself physically strong,
“mentally awake, and morally straight.
“Scout Law
“A Scout is:
“Trustworthy Obedient
“Loyal Cheerful
“Helpful Thrifty
“Friendly Brave
“Courteous Clean
“Kind Reverent.” App. 184.
Thus, the general mission of the Boy Scouts is clear: “[T]o instill values in young people.” Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy
Given that the Boy Scouts engages in expressive activity, we must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints. This inquiry necessarily requires us first to explore, to a limited extent, the nature of the Boy Scouts’ view of homosexuality.
The values the Boy Scouts seeks to instill are “based on” those listed in the Scоut Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath and Law provide “a positive moral code for living; they are a list of ‘do‘s’ rather than ‘don‘ts.‘” Brief for Petitioners 3. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms “morally straight” and “clean.”
Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. See supra, at 649. And the terms “morally straight” and “clean” are by no means self-defining. Different people would attribute to those terms very different meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being “morally straight” and “clean.” And others may believe that engaging in homosexual conduct is contrary to being “morally straight” and “clean.” The Boy Scouts says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts’ beliefs and found that the “exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy
The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,” Brief for Petitioners 39, and that it does “not want to promote homosexual conduct as a legitimate form of behavior,” Reply Brief for Petitioners 5. We accept the Boy Scouts’ assertion. We need not inquire further to determine the nature of the Boy Scouts’ expression with respect to homosexuality. But because the record before us contains written evidence of the Boy Scouts’ viewpoint, we look to it as instructive, if only on the question of the sincerity of the professed beliefs.
A 1978 position statement to the Boy Scouts’ Executive Committee, signed by Downing B. Jenks, the President of the Boy Scouts, and Harvey L. Price, the Chief Scout Executive, expresses the Boy Scouts’ “official position” with regard to “homosexuality and Scouting“:
“Q. May an individual who openly declares himself to be a homosexual be a volunteer Scout leader?
“A. No. The Boy Scouts of America is a private, membership organization and leadership therein is a privilege and not a right. We do not believe that homosexuality and leadership in Scouting are appropriate. We will continue to select only those who in our judgment meet our standards and qualifications for leadership.” App. 453-454.
Thus, at least as of 1978—the year James Dale entered Scouting—the official position of the Boy Scouts was that avowed homosexuals were not to be Scout leaders.
A position statement promulgated by the Boy Scouts in 1991 (after Dale‘s membership was revoked but before this litigation was filed) also supports its current view:
“We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.” Id., at 457.
This position statement was redrafted numerous times but its core message remained consistent. For example, a 1993 position statement, the most recent in the record, reads, in part:
“The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA.” Id., at 461.
The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980‘s, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy Scouts of America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt thаt the Boy Scouts sincerely holds this view.
We must then determine whether Dale‘s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not “promote homosexual conduct as a legitimate form of behavior.” Reply Brief for Petitioners 5. As we give deference to an association‘s assertions regarding the nature of its expression, we must also give deference to an association‘s view of what would impair its expression. See, e. g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National Party‘s associational rights and stating that “a State, or a court, may not constitutionally substitute its own judgment for that of the Party“). That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have “become leaders in their community and are open and honest about their sexual orientation.” App. 11. Dale was the copresident 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 accepts homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered whether the application of Massachusetts’ public accommodations law to require the organizers of a private St. Patrick‘s Day parade to include among the marchers an Irish-American gay, lesbian, and bisexual group, GLIB, violated the parade organizers’ First Amendment rights. We noted that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner. We observed:
“[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.... The parade‘s organizers may not believe these facts about Irish sexuality to be sо, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB‘s message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government‘s power to control.” 515 U. S., at 574-575.
Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.” Reply Brief for Petitioners 5. As the presence of GLIB in Boston‘s St. Patrick‘s Day parade would have interfered with the parade organizers’ choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout‘s choice not to propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy Scouts’ ability to disseminate its message was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of the following findings:
“Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views
in respect of homosexuality.” 160 N. J., at 612, 734 A. 2d, at 1223.
We disagree with the New Jersey Supreme Court‘s conclusion drawn from these findings.
First, associations do not have to associate for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. For example, the purpose of the St. Patrick‘s Day parade in Hurley was not to espouse any views about sexual orientation, but we held that the parade organizers had a right to exclude certain participants nonetheless.
Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues—a fact that the Boy Scouts disputes with contrary evidence—the First Amendment protects the Boy Scouts’ method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above.
Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group‘s policy to be “expressive association.” The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts’ policy on sexual orientation. But if this is true, it is irrelevant.1 The presence of an avowed homosexual and gay
Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey‘s public accommodations 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.
State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation—like inns and trains. See, e. g., Hurley, supra, at 571-572 (explaining the history of Massachusetts’ public accommodations law); Romer v. Evans, 517 U. S. 620, 627-629 (1996) (describing the evolution of public accommodations laws). Over time, the public accommodations laws have expanded to cover more places.2 New Jersey‘s statu-
We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express. In Roberts, we said “[i]ndeed, the Jaycees has failed to demonstrate
“[I]mpediments to the exercise of one‘s right to choose one‘s associates can violate the right of association protected by the First Amendment. In this case, however, 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.” 481 U. S., at 548 (internal quotation marks and citations omitted).
We thereupon concluded in each of these cases that the organizations’ First Amendment rights were not violated by the application of the States’ public accommodations laws.
In Hurley, we said that public accommodations laws “are well within the State‘s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” 515 U. S., at 572. But we went on to note that in that case “the Massachusetts [public accommodations] law has been applied in a peculiar way” because “any contingent of protected individuals with a message would have the right to participate in petitioners’ speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their оwn.” Id., at 572-573. And in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any “serious burden” on the organization‘s rights of expressive association. So in these cases, the associational interest in freedom of expression has
Dale contends that we should apply the intermediate standard of review enunciated in United States v. O‘Brien, 391 U. S. 367 (1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation that has only an incidental effect on protected speech—in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey‘s public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection. Thus, O‘Brien is inapplicable.
In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster 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 Boy Scouts’ rights to freedom of expressive association. That being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law.4
JUSTICE STEVENS’ extolling of Justice Brandeis’ comments in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely different principles. In New State Ice, the Court struck down an Oklahoma regulation prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandeis, a champion of state experimentation in the economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the suppression of free speech. To the contrary, his
to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club‘s existing members.” Id., at 580-581.
dom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Whitney v. California, 274 U. S. 357, 375 (1927) (concurring opinion). He continued:
“Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Id., at 375-376.
We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization‘s expression does not justify the State‘s effort to compel the organization to accept members where such acceptance would derogate from the organization‘s expressive message. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
“All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommoda-
“As used in this act, unless a different meaning clearly appears from the context:
. . .
“l. ‘A place of public accommodation’ shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindеrgarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465, 478 (1978). Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.”
Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice Brandeis’ comment on the States’ right to experiment with “things social” is directly applicable to this case.
“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion).
In its “exercise of this high power” today, the Court does not accord this “courageous State” the respect that is its due.
The majority holds that New Jersey‘s law violates BSA‘s right to associate and its right to free speech. But that law
place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.”
I
James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became a Boy Scout, and he remained a member until his 18th birthday. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout—an honor given to only three percent of all Scouts. In 1989, BSA approved his application to be an Assistant Scoutmaster.
On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter advising him of the revocation of his membership. The letter stated that membership in BSA “is a privilege” that may be denied “whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth.” App. 135. Expressing surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136. In response, BSA sent him a second letter stating that the grounds for the decision “are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals.” Id., at 137. At that time, no such standard had been publicly expressed by BSA.
In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is immoral. Consequently, it argues, it would violate its right to associate to force it to admit homosexuals as members, as doing so would be at odds with its own shared goals and values. This contention, quite plainly, requires us to look at what, exactly, are the values that BSA actually teaches.
. . .
To instill its shared values, BSA has adopted a “Scout Oath” and a “Scout Law” setting forth its central tenets. For example, the Scout Law requires a member to promise, among other things, that he will be “obedient.” Accompanying definitions for the terms found in the Oath and Law are provided in the Boy Scout Handbook and the Scoutmaster Handbook. For instance, the Boy Scout Handbook defines “obedient” as follows:
“A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.” Id., at 188 (emphasis deleted).
. . .
The Boy Scout Handbook defines “morally straight,” as such:
“To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant.” Id., at 218 (emphasis deleted).
The Scoutmaster Handbook emphasizes these points about being “morally straight“:
“In any consideration of moral fitness, a key word has to be ‘courage.’ A boy‘s courage to do what his head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is wrong. Moral fitness, like emotional fitness, will clearly present opportunities for wise guidance by an alert Scoutmaster.” Id., at 239-240.
As for the term “clean,” the Boy Scout Handbook offers the following:
“A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean.
“You never need to be ashamed of dirt that will wash off. If you play hard and work hard you can‘t help get-
ting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and water.
“There‘s another kind of dirt that won‘t come off by washing. It is the kind that shows up in foul language and harmful thoughts.
“Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are targets of insults.” Id., at 225-226 (emphasis in original); see also id., at 189.2
It is plain as the light of day that neither one of these principles—“morally straight” and “clean“—says the slightest thing about homosexuality. Indeed, neither term in the Boy
BSA‘s published guidance on that topic underscores this point. Scouts, for example, are directed to receive their sex education at home or in school, but not from the organization: “Your parents or guardian or a sex education teacher should give you the facts about sex that you must know.” Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are not forbidden from asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, the last person Scouts are encouraged to ask: “If you have questions about growing up, about relationships, sex, or making good decisions, ask. Talk with your parents, religious leaders, teachers, or Scoutmaster.” Ibid. Moreover, Scoutmasters are specifically directed to steer curious adolescents to other sources of information:
“If Scouts ask for information regarding . . . sexual activity, answer honestly and factually, but stay within your realm of expertise and comfort. If a Scout has serious concerns that you cannot answer, refer him to his family, religious leader, doctor, or other professional.” Scoutmaster Handbook (1990) (reprinted in App. 264).
More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come up:
“You may have boys asking you for information or advice about sexual matters. . . .
“How should you handle such matters?
“Rule number 1: You do not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life. The reasons are that it is not construed to be Scouting‘s proper area, and that you are probably not well qualified to do this.
“Rule number 2: If Scouts come to you to ask questions or to seek advice, you would give it within your compe-
tence. A boy who appears to be asking about sexual intercourse, however, may really only be worried about his pimples, so it is well to find out just what information is needed.
“Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are] to handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If such persons are not available, you may just have to do the best you can. But don‘t try to play a highly professional role. And at the other extreme, avoid passing the buck.” Scoutmaster Handbook (1972) (reprinted in App. 546-547) (emphasis added).
In light of BSA‘s self-proclaimed ecumenism, furthermore, it is even more difficult to discern any shared goals or common moral stance on homosexuality. Insofar as religious matters are concerned, BSA‘s bylaws state that it is “absolutely nonsectarian in its attitude toward . . . religious training.” Id., at 362. “The BSA does not define what constitutes duty to God or the practice of religion. This is the responsibility of parents and religious leaders.” Id., at 76. In fact, many diverse religious organizations sponsor local Boy Scout troops. Brief for Petitioners 3. Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals,3 it is exceedingly difficult to believe that BSA none-
II
The Court seeks to fill the void by pointing to a statement of “policies and procedures relating to homosexuality and Scouting,” App. 453, signed by BSA‘s President and Chief Scout Executive in 1978 and addressed to the members of the Executive Committee of the national organization. Ante, at 651-652. The letter says that the BSA does “not believe that homosexuality and leadership in Scouting are appropriate.” App. 454. But when the entire 1978 letter is read, BSA‘s position is far more equivocal:
“4. Q. May an individual who openly declares himself to be a homosexual be employed by the Boy Scouts of America as a professional or non-professional?
“A. Boy Scouts of America does not knowingly employ homosexuals as professionals or non-professionals. We are unaware of any present laws which would prohibit this policy.
“5. Q. Should a professional or non-professional individual who openly declares himself to be a homosexual be terminated?
“A. Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United States which prohibits discrimination against individual‘s employment upon the basis of homosexuality. In the event that such a law was applicable, it would be necessary for the Boy Scouts of America to obey it, in this case as in Paragraph 4 above. It is our position, however, that homosexuality and professional or non-professional employment in Scouting are not appropriate.” Id., at 454-455 (emphasis added).
Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at most this letter simply adopts an exclusionary membership policy. But simply adopting such a policy has never been considered sufficient, by itself, to prevail on a right to associate claim. See infra, at 678-685.
Second, the 1978 policy was never publicly expressed—unlike, for example, the Scout‘s duty to be “obedient.” It was an internal memorandum, never circulated beyond the few members of BSA‘s Executive Committee. It remained, in effect, a secret Boy Scouts policy. Far from claiming any intent to express an idea that would be burdened by the presence of homosexuals, BSA‘s public posture—to the world and to the Scouts themselves—remained what it had always been: one of tolerance, welcoming all classes of boys and young men. In this respect, BSA‘s claim is even weaker than those we have rejected in the past. See ibid.
Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws against discrimination might one day be amended to protect homosexuals from employment discrimination. Their statement clearly provided that, in the event such a law conflicted with their policy, a Scout‘s duty to be “obedient” and “obe[y] the laws,” even if “he thinks [the laws] are unfair,” would prevail in such a
Fourth, the 1978 statement simply says that homosexuality is not “appropriate.” It makes no effort to connect that statement to a shared goal or expressive activity of the Boy Scouts. Whatever values BSA seeks to instill in Scouts, the idea that homosexuality is not “appropriate” appears entirely unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of the BSA. That idea does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy appears to be no more than a private statement of a few BSA executives that the organization wishes to exclude gays—and that wish has nothing to do with any expression BSA actually engages in.
The majority also relies on four other policy statements that were issued between 1991 and 1993.5 All of them were
In 1991, BSA issued two statements both stating: “We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.” App. 457-458. A third statement issued in 1992 was substantially the same. Id., at 459. By 1993, however, the policy had changed:
“BSA Position
“The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization.
“We do not believe that homosexuals provide a role model consistent with these expectations.
“Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA.” Id., at 461.
Aside from the fact that these statements were all issued after Dale‘s membership was revoked, there are four important points relevant to them. First, while the 1991 and 1992
Second, even during the brief period in 1991 and 1992, when BSA tried to connect its exclusion of homosexuals to its definition of terms found in the Oath and Law, there is no evidence that Scouts were actually taught anything about homosexuality‘s alleged inconsistency with those principles. Beyond the single sentence in these policy statements, there is no indication of any shared goal of teaching that homosexuality is incompatible with being “morally straight” and “clean.” Neither BSA‘s mission statement nor its official membership policy was altered; no Boy Scout or Scoutmaster Handbook was amended to reflect the policy statement; no lessons were imparted to Scouts; no change was made to BSA‘s policy on limiting discussion of sexual matters; and no effort was made to restrict acceptable religious affiliations to those that condemn homosexuality. In short, there is no evidence that this view was part of any collective effort to foster beliefs about homosexuality.7
Fourth, at most the 1991 and 1992 statements declare only that BSA believed “homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed.” App. 457 (emphasis added). But New Jersey‘s law prohibits discrimination on the basis of sexual orientation. And when Dale was expelled from the Boy Scouts, BSA said it did so because of his sexual orientation, not because of his sexual conduct.8
It is clear, then, that nothing in these policy statements supports BSA‘s claim. The only policy written before the revocation of Dale‘s membership was an equivocal, undisclosed statement that evidences no connection between the group‘s discriminatory intentions and its expressive interests. The later policies demonstrate a brief—though ulti-
BSA‘s inability to make its position clear and its failure to connect its alleged policy to its expressive activities is highly significant. By the time Dale was expelled from the Boy Scouts in 1990, BSA had already been engaged in several suits under a variety of state antidiscrimination public accommodation laws challenging various aspects of its membership policy.9 Indeed, BSA had filed amicus briefs before this Court in two earlier right to associate cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984), and Board of Directors of Rotary Int‘l v. Rotary Club of Duarte, 481 U. S. 537 (1987)) pointing to these very cases; it was clearly on notice by 1990 that it might well be subjected to state public accommodation antidiscrimination laws, and that a court might one day reject its claimed right to associate. Yet it took no steps prior to Dale‘s expulsion to clarify how its exclusivity was connected to its expression. It speaks volumes about the credibility of BSA‘s claim to a shared goal that homosexuality is incompatible with Scouting that since at least 1984 it had been aware of this issue—indeed, concerned enough to twice file amicus briefs before this
III
BSA‘s claim finds no support in our cases. We have recognized “a right to associate for the purpose of engaging in those activities protected by the
In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we addressed just such a conflict. The Jaycees was a nonprofit membership organization “designed to inculcate in the individual membership . . . a spirit of genuine Americanism and civic interest, and . . . to provide . . . an avenue for intelligent participation by young men in the affairs of their community.” Id., at 612-613. The organization was divided into local chapters, described as “‘young men‘s organization[s],‘” in which regular membership was restricted to males between the ages of 18 and 35. Id., at 613. But Minnesota‘s Human Rights Act, which applied to the Jaycees, made it unlawful to “‘deny any person the full and equal
We rejected that claim. Cautioning that the right to associate is not “absolute,” we held that “[i]nfringements 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.” Id., at 623. We found the State‘s purpose of eliminating discrimination is a compelling state interest that is unrelated to the suppression of ideas. Id., at 623-626. We also held that Minnesota‘s law is the least restrictive means of achieving that interest. The Jaycees had “failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association.” Id., at 626. Though the Jaycees had “taken public positions on a number of diverse issues, [and] . . . regularly engage in a variety of . . . activities worthy of constitutional protection under the
We took a similar approach in Board of Directors of Rotary Int‘l v. Rotary Club of Duarte, 481 U.S. 537 (1987). Rotary International, a nonprofit corporation, was founded as ““an organization of business and professional men united worldwide who provide humanitarian service, encourage high ethical standards in all vocations, and help build good
As in Jaycees, we rejected the claim, holding 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.” 481 U.S., at 548. “To be sure,” we continued, “Rotary Clubs engage in a variety of commendable service activities that are protected by the
Rather, in Jaycees, we asked whether Minnesota‘s Human Rights Law requiring the admission of women “impose[d] any serious burdens” on the group‘s “collective effort on behalf of [its] shared goals.” 468 U. S., at 622, 626-627 (emphases added). Notwithstanding the group‘s obvious publicly stated exclusionary policy, we did not view the inclusion of women as a “serious burden” on the Jaycees’ ability to engage in the protected speech of its choice. Similarly, in Rotary Club, we asked whether California‘s law would “affect in any significant way the existing members’ ability” to engage in their protected speech, or whether the law would require the clubs “to abandon their basic goals.” 481 U. S., at 548 (emphases added); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 581 (1995) (“[A] private club could exclude an applicant whose manifest views were at odds with a position takеn by the club‘s existing members“); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988) (to prevail on a right to associate claim, the group must “be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion“); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-463 (1958) (asking whether law “entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner‘s members of their right to freedom of association” and whether law is “likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs“). The relevant question is whether the mere inclusion of the person at issue would “impose any serious burden,” “affect in any significant way,” or be “a substantial restraint upon” the organization‘s “shared goals,” “basic goals,” or “collective effort to foster beliefs.” Accordingly, it is necessary to examine what, exactly, are
The 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. BSA‘s mission statement and federal charter say nothing on the matter; its official membership policy is silent; its Scout Oath and Law—and accompanying definitions—are devoid of any view on the topic; its guidance for Scouts and Scoutmasters on sexuality declare that such matters are “not construed to be Scouting‘s proper area,” but are the province of a Scout‘s parents and pastor; and BSA‘s posture respecting religion tolerates a wide variety of views on the issue of homosexuality. Moreover, there is simply no evidence that BSA otherwise teaches anything in this area, or that it instructs Scouts on matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief about homosexuality at all—let alone one that is significantly burdened by admitting homosexuals.
As in Jaycees, there is “no basis in the record for concluding that admission of [homosexuals] will impede the [Boy Scouts‘] ability to engage in [its] protected activities or to disseminate its preferred views” and New Jersey‘s law “requires no change in [BSA‘s] creed.” 468 U. S., at 626-627. And like Rotary Club, New Jersey‘s law “does not require [BSA] to abandon or alter any of” its activities. 481 U. S., at 548. The evidence relied on by the Court is not to the contrary. The undisclosed 1978 policy certainly adds nothing to the actual views disseminated to the Scouts. It simply says that homosexuality is not “appropriate.” There is no reason to give that policy statement more weight than Rotary International‘s assertion that all-male membership
Equally important is BSA‘s failure to adopt any clear position on homosexuality. BSA‘s temporary, though ultimately abandoned, view that homosexuality is incompatible with being “morally straight” and “clean” is a far cry from the clear, unequivocal statement necessary to prevail on its claim. Despite the solitary sentences in the 1991 and 1992 policies, the group continued to disclaim any single religious or moral position as a general matter and actively eschewed teaching any lesson on sexuality. It also continued to define “morally straight” and “clean” in the Boy Scout and Scoutmaster Handbooks without any reference to homosexuality. As noted earlier, nothing in our cases suggests that a group can prevail on a right to expressive association if it, effectively, speaks out of both sides of its mouth. A State‘s antidiscrimination law does not impose a “serious burden” or a “substantial restraint” upon the group‘s “shared goals” if the group itself is unable to identify its own stance with any clarity.
IV
The majority pretermits this entire analysis. It finds that BSA in fact “teach[es] that homosexual conduct is not morally straight.“” Ante, at 651. This conclusion, remarkably, rests entirely on statements in BSA‘s briefs. See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5). Moreover, the majority insists that we must “give deference to an association‘s assertions regarding the nature of its expressiоn” and “we must also give deference to an associa
This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the
But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message of its choice, and it is not this Court‘s place to disagree with it. But we must inquire whether the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is significantly affected by a State‘s antidiscrimination law. More critically, that inquiry requires our independent analysis, rather than deference to a group‘s litigating posture. Reflection on the subject dictates that such an inquiry is required.
Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State‘s antidiscrimination laws will have a
“Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another‘s hurt. To use the
Fourteenth Amendment as a sword against such State power would stultify that Amendment. Certainly the insistence by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which theConstitution itself exacts.” Railway Mail Assn. v. Corsi, 326 U.S. 88, 98 (1945) (concurring opinion).
In this case, no such concern is warranted. It is entirely clear that BSA in fact expresses no clear, unequivocal message burdened by New Jersey‘s law.
V
Even if BSA‘s right to associate argument fails, it nonetheless might have a
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), we recognized that the government may not “requir[e] affirmation of a belief and an attitude of mind,” nor
In its briefs, BSA implies, even if it does not directly argue, that Dale would use his Scoutmaster position as a “bully pulpit” to convey immoral messages to his troop, and therefore his inclusion in the group would compel BSA to include a message it does not want to impart. Brief for Petitioners 21-22. Even though the majority does not endorse that argument, I think it is important to explain why it lacks merit, before considering the argument the majority does accept.
BSA has not contended, nor does the record support, that Dale had ever advocated a view on homosexuality to his troop before his membership was revoked. Accordingly, BSA‘s revocation could only have been based on an assumption that he would do so in the future. But the only information BSA had at the time it revoked Dale‘s membership was a newspaper article describing a seminar at Rutgers University on the topic of homosexual teenagers that Dale attended. The relevant passage reads:
“James Dale, 19, co-president of the Rutgers University Lesbian Gay Alliance with Sharice Richardson, also 19, said he lived a double life while in high school, pretending to be straight while attending a military academy.
“He remembers dating girls and even laughing at homophobic jokes while at school, only admitting his homosexuality during his second year at Rutgers. “I was looking for a role model, someone who was gay and accepting of me,’ Dale said, adding he wasn‘t just seeking sexual experiences, but a community that would take him in and provide him with a support network and friends.” App. 517.
Nothing in that article, however, even remotely suggests that Dale would advocate any views on homosexuality to his troop. The Scoutmaster Handbook instructs Dale, like all Scoutmasters, that sexual issues are not their “proper area,” and there is no evidence that Dale had any intention of violating this rule. Indeed, from all accounts Dale was a model Boy Scout and Assistant Scoutmaster up until the day his membership was revoked, and there is no reason to believe that he would suddenly disobey the directives of BSA because of anything he said in the newspaper article.
To be sure, the article did say that Dale was co-president of the Lesbian/Gay Alliance at Rutgers University, and that group presumably engages in advocacy regarding homosexual issues. But surely many members of BSA engage in expressive activities outside of their troop, and surely BSA does not want all of that expression to be carried on inside the troop. For example, a Scoutmaster may be a member of a religious group that encourages its followers to convert others to its faith. Or a Scoutmaster may belong to a political party that encourages its members to advance its views among family and friends.16 Yet BSA does not think it is appropriate for Scoutmasters to proselytize a particular faith to unwilling Scouts or to attempt to convert them from one
The majority, though, does not rest its conclusion on the claim that Dale will use his position as a bully pulpit. Rather, it contends that Dale‘s mere presence among the Boy Scouts will itself force the group to convey a message about homosexuality—even if Dale has no intention of doing so. The majority holds that “[t]he presence of an avowed homosexual and gay rights activist in an assistant scoutmaster‘s uniform sends a distinc[t] . . . message,” and, accordingly, BSA is entitled to exclude that message. Ante, at 655-656. In particular, “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 accepts homosexual conduct as a legitimate form of be
The majority‘s argument relies exclusively on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995). In that case, petitioners John Hurley and the South Boston Allied War Veterans Council ran a privately operated St. Patrick‘s Day parade. Respondent, an organization known as “GLIB,” represented a contingent of gays, lesbians, and bisexuals who sought to march in the petitioners’ parade “as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals.” Id., at 561. When the parade organizers refused GLIB‘s admission, GLIB brought suit under Massachusetts’ antidiscrimination law. That statute, like New Jersey‘s law, prohibited discrimination on account of sexual orientation in any place of public accommodation, which the state courts interpreted to include the parade. Petitioners argued that forcing them to include GLIB in their parade would violate their free speech rights.
We agreed. We first pointed out that the St. Patrick‘s Day parade—like most every parade—is an inherently expressive undertaking. Id., at 568-570. Next, we reaffirmed that the government may not compel аnyone to proclaim a belief with which he or she disagrees. Id., at 573-574. We then found that GLIB‘s marching in the parade would be an expressive act suggesting the view “that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals.” Id., at 574. Finally, we held that GLIB‘s participation in the parade “would likely be perceived” as the parade organizers’ own speech—or at least as a view which they approved—because of a parade organizer‘s customary control over who marches in the parade. Id., at 575. Though Hurley has a superficial similarity to the present case, a close inspection reveals a wide gulf between that case and the one before us today.
Second, we found it relevant that GLIB‘s message “would likely be perceived” as the parade organizers’ own speech. Id., at 575. That was so because “[p]arades and demonstrations . . . are not understood to be so neutrally presented or selectively viewed” as, say, a broadcast by a cable operator, who is usually considered to be “merely ‘a conduit’ for the speech” prоduced by others. Id., at 575-576. Rather, parade organizers are usually understood to make the “customary determination about a unit admitted to the parade.” Id., at 575.
Dale‘s inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable message to the Scouts or to the world. Unlike GLIB, Dale did not
It is true, of course, that some acts are so imbued with symbolic meaning that they qualify as “speech” under the
Another difference between this case and Hurley lies in the fact that Hurley involved the parade organizers’ claim to determine the content of the message they wish to give at a particular time and place. The standards governing such a claim are simply different from the standards that govern BSA‘s claim of a right of expressive association. Generally, a private person or a private organization has a right to refuse to broadcast a message with which it disagrees, and a right to refuse to contradict or garble its own specific statement at any given place or time by including the messages of others. An expressive association claim, however, normally involves the avowal and advocacy of a consistent position on some issue over time. This is why a different kind of scrutiny must be given to an expressive association claim, lest the right of expressive association simply turn into a right to discriminate whenever some group can think of an expressive object that would seem to be inconsistent with the ad
Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or to the world, simply by admitting someone as a member. Over the years, BSA has generously welcomed over 87 million young Americans into its ranks. In 1992 over one million adults were active BSA members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that an organization of that size and enormous prestige implicitly endorses the views that each of those adults may express in a non-Scouting context is simply mind boggling. Indeed, in this case there is no evidence that the young Scouts in Dale‘s troop, or members of their families, were even aware of his sexual orientation, either before or after his public statements at Rutgers University.24 It is equally farfetched to assert that Dale‘s open declaration of his homosexuality, reported in a local newspaper, will effectively force BSA to send a message to anyone simply because it allows Dale to be an Assistant Scoutmaster. For an Olympic gold medal winner or a Wimbledon tennis champion, being “openly gay” perhaps communicates a message—for example, that openness about one‘s sexual orientation is more virtuous than concealment; that a homosexual person can be a capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoral—but it certainly does not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel. The fact that such persons participate in these organizations is not usually construed to convey a message on behalf of those organizations any more than does the inclusion of women, African-Americans, reli
The State of New Jersey has decided that people who are open and frank about their sexual orientation are entitled to equal access to employment as schoolteachers, police officers, librarians, athletic coaches, and a host of other jobs filled by citizens who serve as role models for children and adults alike. Dozens of Scout units throughout the State are sponsored by public agencies, such as schools and fire departments, that employ such role models. BSA‘s affiliation with numerous public agencies that comply with New Jersey‘s law against discrimination cannot be understood to convey any particular message endorsing or condoning the activities of all these people.26
VI
Unfavorable opinions about homosexuals “have ancient roots.” Bowers v. Hardwick, 478 U.S. 186, 192 (1986). Like equally atavistic opinions about certain racial groups, those roots have been nourished by sectarian doctrine. Id., at 196-197 (Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1, 3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495, 520 (1976) (STEVENS, J., dissenting) (“Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white“). Over the years, however, interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes, have modified those opinions. A few examples: The American Psychiatric Association‘s and the American Psychological Association‘s removal of “homosexuality” from their lists of mental disorders;28 a move toward greater understanding within some religious communities;29 Justice Blackmun‘s classic opinion in Bowers;30
Georgia‘s invalidation of the statute upheld in Bowers;31 and New Jersey‘s enactment of the provision at issue in this case. Indeed, the past month alone has witnessed some remarkable changes in attitudes about homosexuals.32
That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice Brandeis so wisely advised, “we must be ever on our guard, lest we erect our prejudices into legal principles.”
If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.
I join JUSTICE STEVENS‘S dissent but add this further word on the significance of Part VI of his opinion. There, JUSTICE STEVENS describes the changing attitudes toward gay people and notes a parallel with the decline of stereotypical thinking about race and gender. The legitimacy of New
Boy Scouts of America (BSA) is entitled, consistently with its own tenets and the open doors of American courts, to raise a federal constitutional basis for resisting the application of New Jersey‘s law. BSA has done that and has chosen to defend against enforcement of the state public accommodations law on the ground that the
The right of expressive association does not, of course, turn on the popularity of the views advanced by a group that claims protection. Whether the group appears to this Court to be in the vanguard or rearguard of social thinking is irrelevant to the group‘s rights. I conclude that BSA has not made out an expressive association claim, therefore, not because of what BSA may espouse, but because of its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message. As JUSTICE STEVENS explains, no group can claim a right of expressive association without identifying a clear position to be advocated over time in an unequivocal way. To require less, and to allow exemption from a public accommodations statute based on any individual‘s difference from an alleged group ideal, however expressed and however inconsistently claimed, would convert the right of expres
If, on the other hand, an expressive association claim has met the conditions JUSTICE STEVENS describes as necessary, there may well be circumstances in which the antidiscrimination law must yield, as he says. It is certainly possible for an individual to become so identified with a position as to epitomize it publicly. When that position is at odds with a group‘s advocated position, applying an antidiscrimination statute to require the group‘s acceptance of the individual in a position of group leadership could so modify or muddle or frustrate the group‘s advocacy as to violate the expressive associational right. While it is not our business here to rule on any such hypothetical, it is at least clear that our estimate of the progressive character of the group‘s position will be irrelevant to the
*An expressive association claim is in this respect unlike a basic free speech claim, as JUSTICE STEVENS points out; the latter claim, i. e., the right to convey an individual‘s or group‘s position, if bona fide, may be taken at face value in applying the
Notes
“10:5-4 Obtaining employment, accommodations and privileges without discrimination; civil right
“All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any
“(Hold up two cooking pots, one shiny bright on the inside but sooty outside, the other shiny outside but dirty inside.) Scouts, which of these pots would you rather have your food cooked in? Did I hear somebody say, ‘Neither one?’
“That‘s not a bad answer. We wouldn‘t have much confidence in a patrol cook who didn‘t have his pots shiny both inside and out.
“But if we had to make a choice, we would tell the cook to use the pot that‘s clean inside. The same idea applies to people.
“Most people keep themselves clean outside. But how about the inside? Dо we try to keep our minds and our language clean? I think that‘s even more important than keeping the outside clean.
“A Scout, of course, should be clean inside and out. Water, soap, and a toothbrush tak[e] care of the outside. Only your determination will keep the inside clean. You can do it by following the Scout Law and the example of people you respect—your parents, your teachers, your clergyman, or a good buddy who is trying to do the same thing.” App. 289-290.
In a New York Times interview, Dale said “I owe it to the organization to point out to them how bad and wrong this policy is.“” App. 513 (emphases added). This statement merely demonstrates that Dale wants to use this litigation—not his Assistant Scoutmaster position—to make a point, and that he wants to make the point to the BSA organization, not to the boys in his troop. At oral argument, BSA conceded that would not be grounds for membership revocation. Tr. of Oral Arg. 13. In a Seattle Times interview, Dale said Scouting is ““about giving adolescent boys a role model.“” App. 549. Hе did not say it was about giving them a role model who advocated a position on homosexuality. In a television interview, Dale also said “I am gay, and I‘m very proud of who I am . . . . I stand up for what I believe in . . . . I‘m not hiding anything.” Id., at 470. Nothing in that statement says anything about an intention to stand up for homosexual rights in any context other than in this litigation. Lastly, Dale said in his affidavit that he is “open and honest about [his] sexual orientation.” Id., at 133. Once again, like someone who is open and honest about his political affiliation, there is no evidence in that statement that Dale will not comply with BSA‘s policy when acting as a Scoutmaster.