OCTOBER TERM, 1999
Syllabus
BOY SCOUTS OF AMERICA ET AL.
v. DALE
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued
April 26, 2000-Decided June 28, 2000
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position as assistant scoutmaster of a New Jersey troop was revoked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.
IrishAmerican 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 readmit 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
641
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 of 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
642
Syllabus
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. 647-661.
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,
post, p. 663. SOUTER, J., filed a dissenting
opinion, in which GINSBURG and BREYER, JJ., joined,
post, p.
700.
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
643
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 (col-
for Constitutional Jurisprudence by
Edwin Meese III; for
the Eagle Forum Education & Legal Defense Fund et al. by
Erik S.
Jaffe; for the Family Defense Council et al.
by
William E. Fay III; for the Family Research Council by
Janet M. LaRue; for Gays and Lesbians for Individual Liberty
by
William H. Mellor, Clint Bolick, and
Scott G.
Bullock; for the Individual Rights Foundation by
Paul A.
Hoffman and
Patrick J. Manshardt; for the
Institute for Public Mfairs of the Union of Orthodox Jewish
Congregations of America by
Nathan J. Diament;
for the Liberty Legal Institute by
Kelly Shackelford and
George B. Flint; for the National Catholic Committee on
Scouting et al. by
Von G.
Keetch; for the National
Legal Foundation by
Barry C.
Hodge; for the Pacific
Legal Foundation by
John H. Findley; for Public Advocate of
the United States et al. by
William J. Olson
and
John S.
Miles; for the United States Catholic
Conference et al. by
Mark E. Chopko and
Jeffrey Hunter
Moon; and for John J. Hurley et al. by
Chester Darling,
Michael Williams, and
Dwight G.
Duncan.
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-
644
lectively, Boy Scouts). The Boy Scouts is a private,
not-forprofit 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
accounts, 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
foyle; for the American Public Health Association et al.
by
Marvin E. Frankel, Jeffrey S.
Trachtman, and
Kerri Ann Law; for Bay Area Lawyers for Individual Freedom
et al. by
Edward W Swanson and
Paula A. Brantner; for
Deans of Divinity Schools and Rabbinical Institutions by
David
A. Schulz; for the National Association for the Advancement of
Colored People by
Dennis C.
Hayes and
David T.
Goldberg; for Parents, Families, and Friends of Lesbians and
Gays, Inc., et al. by
John H. Pickering, Daniel H. Squire,
and
Carol J. Banta; for the Society of
American Law Teachers by
Nan D. Hunter and
David
Cole; and for Roland Pool et al. by
David M. Gische and
Merril Hirsh.
Michael D. Silverman filed a brief for the General Board
of Church and Society of the United Methodist Church et al.
645
others that he is gay. He quickly became involved with, and
eventually became the copresident of, the Rutgers University
Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing
the psychological and health needs of lesbian and gay teenagers. A
newspaper covering the event interviewed Dale about his advocacy of
homosexual teenagers' need for gay role models. In early July 1990,
the newspaper published the interview and Dale's photograph over a
caption identifying him as the copresident of the Lesbian/ Gay
Alliance.
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. N. J. Stat.
Ann. §§ 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix,
infra, at 661-663.
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
646
and held that the First Amendment freedom of expressive
association prevented the government from forcing the Boy Scouts to
accept Dale as an adult leader.
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 lnt'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
647
of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the
court concluded that it was "not persuaded ... that a shared goal
of Boy Scout members is to associate in order to preserve the view
that homosexuality is immoral."
Ibid., 734 A. 2d, at
1223-1224 (internal quotation marks omitted). Accordingly, the
court held "that Dale's membership does not violate the Boy Scouts'
right of expressive association because his inclusion would not
'affect in any significant way [the Boy Scouts'] existing members'
ability to carry out their various purposes.'"
Id., at 615,
734 A. 2d, at 1225 (quoting
Duarte, supra, at 548). The
court also determined that New Jersey has a compelling interest in
eliminating "the destructive consequences of discrimination from
our society," and that its public accommodations law abridges no
more speech than is necessary to accomplish its purpose. 160 N. J.,
at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed
the Boy Scouts' reliance on
Hurley v.
IrishAmerican Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in
support of its claimed First Amendment right to exclude Dale. The
court determined that
Hurley did not require deciding the
case in favor of the Boy Scouts because "the reinstatement of Dale
does not compel Boy Scouts to express any message." 160 N. J., at
624, 734 A. 2d, at 1229.
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
648
rather express other, perhaps unpopular, ideas. See
ibid.
(stating that protection of the right to expressive association is
"especially important in preserving political and cultural
diversity and in shielding dissident expression from suppression by
the majority"). Government actions that may unconstitutionally
burden this freedom may take many forms, one of which is "intrusion
into the internal structure or affairs of an association" like a
"regulation that forces the group to accept members it does not
desire."
Id., at 623. Forcing a group to accept certain
members may impair the ability of the group to express those views,
and only those views, that it intends to express. Thus, "[f]reedom
of association ... plainly presupposes a freedom not to associate."
Ibid.
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 ideas, 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
649
factual record to ensure that the state court's judgment does
not unlawfully intrude on free expression. See
Hurley,
supra, at 567-568. The record reveals the following. The Boy
Scouts is a private, nonprofit organization. According to its
mission statement:
"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
650
Scouts' values-both expressly and by example. It seems
indisputable that an association that seeks to transmit such a
system of values engages in expressive activity. See
Roberts, supra, at 636 (O'CONNOR, J., concurring) ("Even the
training of outdoor survival skills or participation in community
service might become expressive when the activity is intended to
develop good morals, reverence, patriotism, and a desire for
self-improvement").
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 Scout 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
651
Scouts' commitment to a diverse and 'representative' membership
... [and] contradicts Boy Scouts' overarching objective to reach
'all eligible youth.'" 160 N. J., at 618, 734 A. 2d, at 1226. The
court concluded that the exclusion of members like Dale "appears
antithetical to the organization's goals and philosophy."
Ibid. But our cases reject this sort of inquiry; it is not
the role of the courts to reject a group's expressed values because
they disagree with those values or find them internally
inconsistent. See
Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981)
("[A]s is true of all expressions of First Amendment freedoms, the
courts may not interfere on the ground that they view a particular
expression as unwise or irrational"); see also
Thomas v.
Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714 (1981)
("[R]eligious beliefs need not be acceptable, logical, consistent,
or comprehensible to others in order to merit First Amendment
protection").
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. Mayan individual who openly declares himself to be a
homosexual be a volunteer Scout leader?
652
"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
653
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 that 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 IrishAmerican 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:
654
"[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 so, 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
655
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
1 The record evidence sheds doubt on Dale's assertion. For
example, the National Director of the Boy Scouts certified that
"any persons who advocate to Scouting youth that homosexual
conduct is" consistent with Scouting values will not be registered
as adult leaders. App. 746 (emphasis added). And the Monmouth
Council Scout Executive testified that the
656
rights activist in an assistant scoutmaster's uniform sends a
distinctly different message from the presence of a heterosexual
assistant scoutmaster who is on record as disagreeing with Boy
Scouts policy. The Boy Scouts has a First Amendment right to choose
to send one message but not the other. The fact that the
organization does not trumpet its views from the housetops, or that
it tolerates dissent within its ranks, does not mean that its views
receive no First Amendment protection.
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-
advocacy of the morality of homosexuality to youth members by
any adult member is grounds for revocation of the adult's
membership.
Id., at 761.
2 Public accommodations laws have also broadened in scope to
cover more groups; they have expanded beyond those groups that have
been given heightened equal protection scrutiny under our cases.
See
Romer, 517 U. S., at 629. Some municipal ordinances have
even expanded to cover criteria such as prior criminal record,
prior psychiatric treatment, military status, personal appearance,
source of income, place of residence, and political ideology. See 1
Boston, Mass., Ordinance No. § 12-9.7 (1999) (ex-offender, prior
psychiatric treatment, and military status); D. C. Code Ann. §
1-2519 (1999) (personal appearance, source of income, place of
residence); Seattle, Wash., Municipal Code § 14.08.090 (1999)
(political ideology).
657
tory definition of" '[a] place of public accommodation'" is
extremely broad. The term is said to "include, but not be limited
to," a list of over 50 types of places. N. J. Stat. Ann. §
10:5-5(l) (West Supp. 2000); see Appendix,
infra, at
661663. Many on the list are what one would expect to be places
where the public is invited. For example, the statute includes as
places of public accommodation taverns, restaurants, retail shops,
and public libraries. But the statute also includes places that
often may not carry with them open invitations to the public, like
summer camps and roof gardens. In this case, the New Jersey Supreme
Court went a step further and applied its public accommodations law
to a private entity without even attempting to tie the term "place"
to a physical location.3 As the definition of "public
accommodation" has expanded from clearly commercial entities, such
as restaurants, bars, and hotels, to membership organizations such
as the Boy Scouts, the potential for conflict between state public
accommodations laws and the First Amendment rights of organizations
has increased.
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 ...
3 Four State Supreme Courts and one United States Court of
Appeals have ruled that the Boy Scouts is not a place of public
accommodation.
Welsh v.
Boy Scouts of America,
993 F.2d
1267 (CA7), cert. denied, 510 U. S. 1012 (1993);
Curran v.
Mount Diablo Council of the Boy Scouts of
America, 17 Cal. 4th 670, 952 P. 2d 218 (1998);
Seabourn
v.
Coronado Area Council, Boy Scouts of America, 257 Kan.
178, 891 P. 2d 385 (1995);
Quinnipiac Council, Boy Scouts of
America, Inc. v.
Comm'n on Human Rights &
Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987);
Schwenk v.
Boy Scouts of America, 275 Ore. 327, 551
P. 2d 465 (1976). No federal appellate court or state supreme
court-except the New Jersey Supreme Court in this case-has reached
a contrary result.
658
any serious burdens on the male members' freedom of expressive
association." 468 U. S., at 626. In
Duarte, we said:
"[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 own."
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
659
been set on one side of the scale, and the State's interest on
the other.
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
4 We anticipated this result in
Hurley when we
illustrated the reasons for our holding in that case by likening
the parade to a private membership organization. 515 U. S., at 580.
We stated: "Assuming the parade
660
JUSTICE STEVENS' dissent makes much of its observation that the
public perception of homosexuality in this country has changed. See
post, at 699-700. Indeed, it appears that homosexuality has
gained greater societal acceptance. See
ibid. But this is
scarcely an argument for denying First Amendment protection to
those who refuse to accept these views. The First Amendment
protects expression, be it of the popular variety or not. See,
e. g., Texas v.
Johnson, 491 U. S. 397 (1989)
(holding that Johnson's conviction for burning the American flag
violates the First Amendment);
Brandenburg v.
Ohio,
395 U. S. 444
(1969)
(per curiam) (holding that a Ku Klux Klan leader's
conviction for advocating unlawfulness as a means of political
reform violates the First Amendment). And 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.
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 First Amendment commentary provides compelling support for the
Court's opinion in this case. In speaking of the Founders of this
Nation, Justice Brandeis emphasized that they "believed that
free-
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.
661
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
N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). "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 place of public accommoda-
662
Appendix to opinion of the Court
tion, 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."
N. J. Stat. Ann. § 10:5-5 (West Supp. 2000). "Definitions "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 kindergarten, 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.
663
Nothing herein contained shall be construed to include or to
apply to any institution, bona fide club, or place of
accommodation, which is in its nature distinctly private; nor shall
anything herein contained apply to any educational facility
operated or maintained by a bona fide religious or sectarian
institution, and the right of a natural parent or one in loco
parentis to direct the education and upbringing of a child under
his control is hereby affirmed; nor shall anything herein contained
be construed to bar any private secondary or post secondary school
from using in good faith criteria other than race, creed, color,
national origin, ancestry or affectional or sexual orientation in
the admission of students."
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." N. J. Stat. Ann. § 10:5-4
(West Supp. 2000). The New Jersey Supreme Court's construction of
the statutory definition of a "place of public accommodation" has
given its statute a more expansive coverage than most similar state
statutes. And as amended in 1991, the law prohibits discrimination
on the basis of nine different traits including an individual's
"sexual orientation." 1 The question in this case is whether that
ex-
1 In 1992, the statute was again amended to add "familial
status" as a tenth protected class. It now provides:
"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
664
pansive construction trenches on the federal constitutional
rights of the Boy Scouts of America (BSA).
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."
665
does not "impos[e] any serious burdens" on BSA's "collective
effort on behalf of [its] shared goals,"
Roberts v.
United States Jaycees, 468 U. S. 609, 622,
626-627 (1984), nor does it force BSA to communicate any message
that it does not wish to endorse. New Jersey's law, therefore,
abridges no constitutional right of BSA.
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.
666
BSA's mission statement reads as follows: "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."
Id., at 184. Its federal charter declares its
purpose is "to promote, through organization, and cooperation with
other agencies, the ability of boys to do things for themselves and
others, to train them in scoutcraft, and to teach them patriotism,
courage, self-reliance, and kindred values, using the methods which
were in common use by Boy Scouts on June 15, 1916." 36 U. S. C. §
23; see also App. 315-316. BSA describes itself as having a
"representative membership," which it defines as "boy membership
[that] reflects proportionately the characteristics of the boy
population of its service area."
Id., at 65. In particular,
the group emphasizes that "[n]either the charter nor the bylaws of
the Boy Scouts of America permits the exclusion of any boy .... To
meet these responsibilities we have made a commitment that our
membership shall be representative of
all the population in
every community, district, and council."
Id., at 66-67
(emphasis in original).
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).
667
To bolster its claim that its shared goals include teaching that
homosexuality is wrong, BSA directs our attention to two terms
appearing in the Scout Oath and Law. The first is the phrase
"morally straight," which appears in the Oath ("On my honor I will
do my best ... To keep myself ... morally straight"); the second
term is the word "clean," which appears in a list of 12
characteristics together constituting the Scout Law.
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-
668
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
2 Scoutmasters are instructed to teach what it means to be
"clean" using the following lesson:
"(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? Do 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.
669
Scouts' Law and Oath expresses any position whatsoever on sexual
matters.
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-
670
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. 546547)
(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-
3 See,
e. g., Brief for Deans of Divinity Schools
and Rabbinical Institutions as
Amicus Curiae 8 ("The diverse
religi[ous] traditions of this country present no coherent moral
message that excludes gays and lesbians from participating as full
and equal members of those institutions. Indeed, the movement among
a number of the nation's major religious institutions for many
decades has been toward public recognition of gays and lesbians as
full members of moral communities, and acceptance of gays and
lesbians as religious leaders, elders and clergy"); Brief for
General Board of Church and Society of the United Methodist Church
et al. as
671
theless adopts a single particular religious or moral philosophy
when it comes to sexual orientation. This is especially so in light
of the fact that Scouts are advised to seek guidance on sexual
matters from their religious leaders (and Scoutmasters are told to
refer Scouts to them); 4 BSA surely is aware that some religions do
not teach that homosexuality is wrong.
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. Mayan 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.
Amicus Curiae 3 (describing views of the United Methodist
Church, the Episcopal Church, the Religious Action Center of Reform
Judaism, the United Church Board for Homeland Ministries, and the
Unitarian Universalist Association, all of whom reject
discrimination on the basis of sexual orientation). 4 See
supra, at 667 ("Be ... faithful in your religious beliefs");
supra, at 668, n. 2 ("by following ... the example of ...
your clergyman");
supra, at 669 ("If you have questions about
... sex, ... [t]alk with your ... religious leade[r]");
ibid. ("If Scouts ask for information regarding ... sexual
activity ... refer him to his ... religious leader");
supra,
at 670 ("You should refer boys with sexual problems to [their]
spiritual leader").
672
"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
J, 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
673
contingency. See
supra, at 666. In 1978, however, BSA
apparently did not consider it to be a serious possibility that a
State might one day characterize the Scouts as a "place of public
accommodation" with a duty to open its membership to all qualified
individuals. The portions of the statement dealing with membership
simply assume that membership in the Scouts is a "privilege" that
BSA is free to grant or to withhold. The statement does not address
the question whether the publicly proclaimed duty to obey the law
should prevail over the private discriminatory policy if, and when,
a conflict between the two should arise-as it now has in New
Jersey. At the very least, then, the statement reflects no
unequivocal view on homosexuality. Indeed, the statement suggests
that an appropriate way for BSA to preserve its unpublished
exclusionary policy would include an open and forthright attempt to
seek an amendment of New Jersey's statute. ("If he thinks these
rules and laws are unfair, he tries to have them changed in an
orderly manner rather than disobey them.")
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
5 The authorship and distribution of these statements remain
obscure.
Unlike the 1978 policy-which clearly identifies the authors as
the President and the Chief Scout Executive of BSA-these later
policies are unsigned. Two of them are initialed (one is labeled
"JCK"; the other says
674
written and issued
after BSA revoked Dale's membership.
Accordingly, they have little, if any, relevance to the legal
question before this Court.6 In any event, they do not bolster
BSA's claim.
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
"js"), but BSA never tells us to whom these initials belong. Nor
do we know how widely these statements were distributed. From the
record evidence we have, it appears that they were not as readily
available as the Boy Scout and Scoutmaster Handbooks; indeed, they
appear to be quite difficult to get a hold of. See App. 662,
668-669.
6 Dale's complaint requested three forms of relief: (1) a
declaration that his rights under the New Jersey statute had been
violated when his membership was revoked; (2) an order reinstating
his membership; and (3) compensatory and punitive damages.
Id., at 27. Nothing that BSA could have done after the
revocation of his membership could affect Dale's first request for
relief, though perhaps some possible postrevocation action could
have influenced the other two requests for relief.
675
statements tried to tie BSA's exclusionary policy to the meaning
of the Scout Oath and Law, the 1993 statement abandoned that
effort. Rather, BSA's 1993 homosexual exclusion policy was based on
its view that including gays would be contrary to "the expectations
that Scouting families have had for the organization."
Ibid.
Instead of linking its policy to its central tenets or shared
goals-to teach certain definitions of what it means to be "morally
straight" and "clean"-BSA chose instead to justify its policy on
the "expectatio[n]" that its members preferred to exclude
homosexuals. The 1993 policy statement, in other words, was
not based on any expressive activity or on any moral view
about homosexuality. It was simply an exclusionary membership
policy, similar to those we have held insufficient in the past. See
infra, at 678-685.
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
7 Indeed, the record evidence is to the contrary. See,
e.
g., App. 666-669 (affidavit of former Boy Scout whose young
children were Scouts, and was himself an assistant scoutmaster and
Merit Badge counselor) ("I never heard and am not aware of any
discussion about homosexuality that oc-
676
Third, BSA never took any clear and unequivocal position on
homosexuality. Though the 1991 and 1992 policies state one
interpretation of "morally straight" and "clean," the group's
published definitions appearing in the Boy Scout and Scoutmaster
Handbooks take quite another view. And BSA's broad religious
tolerance combined with its declaration that sexual matters are not
its "proper area" render its views on the issue equivocal at best
and incoherent at worst. We have never held, however, that a group
can throw together any mixture of contradictory positions and then
invoke the right to associate to defend anyone of those views. At a
minimum, a group seeking to prevail over an antidiscrimination law
must adhere to a clear and unequivocal view.
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-
cUlTed during any Scouting meeting or function .... Prior to
September 1991, I never heard any mention whatsoever of
homosexuality during any Scouting function").
8 At oral argument, BSA's counsel was asked: "[W]hat if someone
is homosexual in the sense of having a sexual orientation in that
direction but does not engage in any homosexual conduct?" Counsel
answered: "[I]f that person also were to take the view that the
reason they didn't engage in that conduct [was because] it would be
morally wrong ... that person would not be excluded." Tr. of Oral
Arg. 8.
677
mately abandoned-attempt to tie BSA's exclusion to its
expression, but other than a single sentence, BSA fails to show
that it ever taught Scouts that homosexuality is not "morally
straight" or "clean," or that such a view was part of the group's
collective efforts to foster a belief. Furthermore, BSA's policy
statements fail to establish any clear, consistent, and unequivocal
position on homosexuality. Nor did BSA have any reason to think
Dale's sexual
conduct, as opposed to his orientation, was
contrary to the group's values.
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 lnt'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
9 See,
e. g., Quinnipiac Council, Boy Scouts of America
v.
Commission on Human Rights and Opportunities, 204 Conn.
287, 528 A. 2d 352 (1987) (challenge to BSA's exclusion of girls);
Curran v.
Mount Diablo Council of the Boy Scouts of
America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983)
(challenge to BSA's denial of membership to homosexuals; rejecting
BSA's claimed right of association), overruled on other grounds, 17
Cal. 4th 670, 952 P. 2d 218 (1998).
678
Court-yet it did nothing in the intervening six years (or even
in the years after Dale's explusion) to explain clearly and openly
why the presence of homosexuals would affect its expressive
activities, or to make the view of "morally straight" and "clean"
taken in its 1991 and 1992 policies a part of the values actually
instilled in Scouts through the Handbook, lessons, or
otherwise.
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 First Amendmentspeech, assembly, petition for the
redress of grievances, and the exercise of religion."
Roberts, 468 U. S., at 618. And we have acknowledged that
"when the State interferes with individuals' selection of those
with whom they wish to join in a common endeavor, freedom of
association ... may be implicated."
Ibid. But "[t]he right
to associate for expressive purposes is not ... absolute"; rather,
"the nature and degree of constitutional protection afforded
freedom of association may vary depending on the extent to which
... the constitutionally protected liberty is at stake in a given
case."
Id., at 623, 618. Indeed, the right to associate does
not mean "that in every setting in which individuals exercise some
discrimination in choosing associates, their selective process of
inclusion and exclusion is protected by the Constitution."
New
York State Club Assn., Inc. v.
City of New York,
487 U. S. 1, 13
(1988). For example, we have routinely and easily rejected
assertions of this right by expressive organizations with
discriminatory membership policies, such as private schools,lO
law
10 Runyon v.
McCrary, 427 U. S. 160, 175-176
(1976) ("[T]he Court has recognized a First Amendment right 'to
engage in association for the advancement of beliefs and ideas ...
.' From this principle it may be assumed that parents have a First
Amendment right to send their children to educational institutions
that promote the belief that racial segregation is desirable, and
that the children have an equal right to attend such insti-
679
firms,l1 and labor organizations.12 In fact, until today, we
have never once found a claimed right to associate in the selection
of members to prevail in the face of a State's antidiscrimination
law. To the contrary, we have squarely held that a State's
antidiscrimination law does not violate a group's right to
associate simply because the law conflicts with that group's
exclusionary membership policy.
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
tutions. But it does not follow that the
practice of
excluding racial minorities from such institutions is also
protected by the same principle" (citation omitted)).
11
Hishon v.
King &
Spalding, 467 U. S. 69, 78 (1984)
("[R]espondent argues that application of Title VII in this case
would infringe constitutional rights of ... association. Although
we have recognized that the activities of lawyers may make a
'distinctive contribution ... to the ideas and beliefs of our
society,' respondent has not shown how its ability to fulfill such
a function would be inhibited by a requirement that it consider
petitioner for partnership on her merits. Moreover, as we have held
in another context, '[i]nvidious private discrimination may be
characterized as a form of exercising freedom of association
protected by the First Amendment, but it has never been accorded
affirmative constitutional protections'" (citations omitted)).
12 Railway Mail Assn. v.
Corsi, 326 U. S. 88, 93-94 (1945)
("Appellant first contends that [the law prohibiting racial
discrimination by labor organizations] interfere[s] with its right
of selection to membership .... We see no constitutional basis for
the contention that a state cannot protect workers from exclusion
solely on the basis of race").
680
enjoyment of ... a place of public accommodation because of ...
sex.'"
Id., at 615. The Jaycees, however, claimed that
applying the law to it violated its right to associate-in
particular its right to maintain its selective membership
policy.
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 First
Amendment," there was "no basis in the record for concluding that
admission of women as full voting members will impede the
organization's ability to engage in these protected activities or
to disseminate its preferred views."
Id., at 626-627. "The
Act," we held, "requires no change in the Jaycees' creed of
promoting the interest of young men, and it imposes no restrictions
on the organization's ability to exclude individuals with
ideologies or philosophies different from those of its existing
members."
Id., at 627.
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-
681
will and peace in the world.'"
Id., at 539. It admitted a
cross section of worthy business and community leaders,
id.,
at 540, but refused membership to women. "[T]he exclusion of
women," explained the group's General Secretary, "results in an
'aspect of fellowship ... that is enjoyed by the present male
membership.'"
Id., at 541. That policy also allowed the
organization "to operate effectively in foreign countries with
varied cultures and social mores."
Ibid. Though California's
Civil Rights Act, which applied to Rotary International, prohibited
discrimination on the basis of sex,
id., at 541-542, n. 2,
the organization claimed a right to associate, including the right
to select its members.
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 First Amendment. But
[California's Civil Rights Act] does not require the clubs to
abandon or alter any of these activities. It does not require them
to abandon their basic goals of humanitarian service, high ethical
standards in all vocations, good will, and peace. Nor does it
require them to abandon their classification system or admit
members who do not reflect a cross section of the community."
Ibid. Finally, even if California's law worked a "slight
infringement on Rotary members' right of expressive association,
that infringement is justified because it serves the State's
compelling interest in eliminating discrimination against women."
Id., at 549.13
13 BSA urged on brief that under the New Jersey Supreme Court's
reading of the State's antidiscrimination law, "Boy Scout Troops
would be forced to admit girls as members" and "Girl Scout Troops
would be forced to admit boys." Brief for Petitioners 37. The New
Jersey Supreme Court had no occasion to address that question, and
no such issue is tendered for our decision. I note, however, the
State of New Jersey's obser-
682
Several principles are made perfectly clear by
Jaycees
and
Rotary Club. First, to prevail on a claim of expressive
association in the face of a State's antidiscrimination law, it is
not enough simply to engage in
some kind of expressive
activity. Both the Jaycees and the Rotary Club engaged in
expressive activity protected by the First Amendment,14 yet that
fact was not dispositive. Second, it is not enough to adopt an
openly avowed exclusionary membership policy. Both the Jaycees and
the Rotary Club did that as wel1.15 Third, it is not sufficient
merely to articulate
some connection between the group's
expressive activities and its exclusionary policy. The Rotary Club,
for example, justified its male-only membership policy by pointing
to the "'aspect of fellowship ... that is enjoyed by the
[exclusively] male membership'" and by claiming that only with an
exclusively male membership
vation that BSA ignores the exemption contained in New Jersey's
law for" 'any place of public accommodation which is in its nature
reasonably restricted exclusively to one sex,'" including, but not
limited to, "'any summer camp, day camp, or resort camp, bathhouse,
dressing room, swimming pool, gymnasium, comfort station,
dispensary, clinic or hospital, or school or educational
institution which is restricted exclusively to individuals of one
sex.''' See Brief for State of New Jersey as
Amicus Curiae
12-13, n. 2 (citing N. J. Stat. Ann. § 10:5-12(f) (West 1993)).
14 See
Roberts v.
United States Jaycees, 468 U. S. 609, 626-627
(1984) ("[T]he organization [has] taken public positions on a
number of diverse issues ... worthy of constitutional protection
under the First Amendment" (citations omitted));
Board of
Directors of Rotary Int'l v.
Rotary Club of Duarte,
481 U. S. 537,
548 (1987) ("To be sure, Rotary Clubs engage in a variety of
commendable service activities that are protected by the First
Amendment").
15The Jaycees openly stated that it was an organization designed
to serve the interests of "young men"; its local chapters were
described as "'young men's organization[s]"'; and its membership
policy contained an express provision reserving regular membership
to young men.
Jaycees, 468 U. S., at 612-613. Likewise,
Rotary International expressed its preference for male-only
membership: It proclaimed that it was" 'an organization of business
and professional
men'" and its membership policy expressly
excluded women.
Rotary Club, 481 U. S., at 539, 541
(emphasis added).
683
could it "operate effectively" in foreign countries.
Rotary
Club, 481 U. S., at 541.
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 taken by the club's existing
members");
New York State Club Assn., 487 U. S., at 13 (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
684
BSA's shared goals and the degree to which its expressive
activities would be burdened, affected, or restrained by including
homosexuals.
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
685
fosters the group's "fellowship" and was the only way it could
"operate effectively." As for BSA's postrevocation statements, at
most they simply adopt a policy of discrimination, which is no more
dispositive than the openly discriminatory policies held
insufficient in
Jaycees and
Rotary Club; there is no
evidence here that BSA's policy was necessary toor even a part
of-BSA's expressive activities or was ever taught to Scouts.
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 expression"
and "we must also give deference to an association's view of what
would impair its expression."
Ante, at
686
653. So long as the record "contains written evidence" to
support a group's bare assertion, "[w]e need not inquire further."
Ante, at 651. Once the organization "asserts" that it
engages in particular expression,
ibid., "[w]e cannot doubt"
the truth of that assertion,
ante, at 653.
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 First Amendment area, because, as the
majority itself acknowledges, "we are obligated to independently
review the factual record."
Ante, at 648649. It is an odd
form of independent review that consists of deferring entirely to
whatever a litigant claims. But the majority insists that our
inquiry must be "limited,"
ante, at 650, because "it is not
the role of the courts to reject a group's expressed values because
they disagree with those values or find them internally
inconsistent,"
ante, at 651. See also Brief for Petitioners
25 ("[T]he Constitution protects [BSA's] ability to control its own
message").
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 First Amendment right to
association that precludes forced compliance with those laws. But
that right is not a freedom to discriminate at will, nor is it a
right to maintain an exclusionary member-
687
ship policy simply out of fear of what the public reaction would
be if the group's membership were opened up. It is an implicit
right designed to protect the enumerated rights of the First
Amendment, not a license to act on any discriminatory impulse. To
prevail in asserting a right of expressive association as a defense
to a charge of violating an antidiscrimination law, the
organization must at least show it has adopted and advocated an
unequivocal position inconsistent with a position advocated or
epitomized by the person whom the organization seeks to exclude. If
this Court were to defer to whatever position an organization is
prepared to assert in its briefs, there would be no way to mark the
proper boundary between genuine exercises of the right to
associate, on the one hand, and sham claims that are simply
attempts to insulate nonexpressive private discrimination, on the
other hand. Shielding a litigant's claim from judicial scrutiny
would, in turn, render civil rights legislation a nullity, and turn
this important constitutional right into a farce. Accordingly, the
Court's prescription of total deference will not do. In this
respect, Justice Frankfurter's words seem particularly apt:
"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 the Constitution
itself exacts." Railway
688
Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945)
(concurring opinion).
There is, of course, a valid concern that a court's independent
review may run the risk of paying too little heed to an
organization's sincerely held views. But unless one is prepared to
turn the right to associate into a free pass out of
antidiscrimination laws, an independent inquiry is a necessity.
Though the group must show that its expressive activities will be
substantially burdened by the State's law, if that law truly has a
significant effect on a group's speech, even the subtle speaker
will be able to identify that impact.
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 First Amendment right to refrain from including debate
and dialogue about homosexuality as part of its mission to instill
values in Scouts. It can, for example, advise Scouts who are
entering adulthood and have questions about sex to talk "with your
parents, religious leaders, teachers, or Scoutmaster," and, in
turn, it can direct Scoutmasters who are asked such questions "not
undertake to instruct Scouts, in any formalized manner, in the
subject of sex and family life" because "it is not construed to be
Scouting's proper area." See
supra, at 669-670. Dale's right
to advocate certain beliefs in a public forum or in a private
debate does not include a right to advocate these ideas when he is
working as a Scoutmaster. And BSA cannot be compelled to include a
message about homosexuality among the values it actually chooses to
teach its Scouts, if it would prefer to remain silent on that
subject.
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
689
"force an American citizen publicly to profess any statement of
belief," even if doing so does not require the person to "forego
any contrary convictions of their own."
Id., at 633634.
"[O]ne important manifestation of the principle of free speech is
that one who chooses to speak may also decide 'what not to say.'"
Hurley, 515 U. S., at 573. Though the majority mistakenly
treats this statement as going to the right to associate, it
actually refers to a free speech claim. See
id., at 564-565,
580-581 (noting distinction between free speech and right to
associate claims). As with the right to associate claim, though,
the court is obligated to engage in an independent inquiry into
whether the mere inclusion of homosexuals would actually force BSA
to proclaim a message it does not want to send.
Id., at
567.
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.
690
"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
16 Scoutmaster Handbook (1990) (reprinted in App. 273) ("Scouts
and Scouters are encouraged to take active part in political
matters
as individuals" (emphasis added)).
691
religion to anotherP Nor does BSA think it appropriate for
Scouts or Scoutmasters to bring politics into the troop.18 From all
accounts, then, BSA does not discourage or forbid outside
expressive activity, but relies on compliance with its policies and
trusts Scouts and Scoutmasters alike not to bring unwanted views
into the organization. Of course, a disobedient member who flouts
BSA's policy may be expelled. But there is no basis for BSA to
presume that a homosexual will be unable to comply with BSA's
policy not to discuss sexual matters any more than it would presume
that politically or religiously active members could not resist the
urge to proselytize or politicize during troop meetings.19 As BSA
itself puts it, its rights are "not implicated
unless a
prospective leader
presents himself as a role model
incon-
17Bylaws of the Boy Scouts of America, Art. IX, § 1, cl. 3
(reprinted in App. 363) ("In no case where a unit is connected with
a church or other distinctively religious organization shall
members of other denominations or faith be required, because of
their membership in the unit, to take part in or observe a
religious ceremony distinctly unique to that organization or
church").
18 Rules and Regulations of the Boy Scouts of America, Art. IX,
§ 2, cl. 6 (reprinted in App. 407) ("The Boy Scouts of America
shall not, through its governing body or through any of its
officers, its chartered councils, or members, involve the Scouting
movement in any question of a political character").
19 Consider, in this regard, that a heterosexual, as well as a
homosexual, could advocate to the Scouts the view that
homosexuality is not immoral. BSA acknowledges as much by stating
that a heterosexual who advocates that view to Scouts would be
expelled as well.
Id., at 746
("[Ainy persons who
advocate to Scouting youth that homosexual conduct is 'morally
straight' under the Scout Oath, or 'clean' under the Scout Law will
not be registered as adult leaders" (emphasis added))
(certification of BSA's National Director of Program). But BSA does
not expel heterosexual members who take that view
outside of
their participation in Scouting, as long as they do not advocate
that position to the Scouts. Tr. of Oral Arg. 6. And if there is no
reason to presume that such a heterosexual will openly violate
BSA's desire to express no view on the subject, what reasonother
than blatant stereotyping-could justify a contrary presumption for
homosexuals?
692
sistent with Boy Scouting's understanding of the Scout Oath and
Law." Brief for Petitioners 6 (emphases added).20
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-
20 BSA cites three media interviews and Dale's affidavit to
argue that he will openly advance a pro-gay agenda while being a
Scoutmaster. None of those statements even remotely supports that
conclusion. And
all of them were made
after Dale's
membership was revoked and
after this litigation commenced;
therefore, they could not have affected BSA's revocation
decision.
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. He 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.
693
havior."
Ante, at 653; see also Brief for Petitioners 24
("By donning the uniform of an adult leader in Scouting, he would
'celebrate [his] identity' as an openly gay Scout leader").
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 anyone 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.
694
First, it was critical to our analysis that GLIB was actually
conveying a message by participating in the parade-otherwise, the
parade organizers could hardly claim that they were being forced to
include any unwanted message at all. Our conclusion that GLIB was
conveying a message was inextricably tied to the fact that GLIB
wanted to march in a parade, as well as the manner in which it
intended to march. We noted the "inherent expressiveness of
marching [in a parade] to make a point,"
id., at 568, and in
particular that GLIB was formed for the purpose of making a
particular point about gay pride,
id., at 561, 570. More
specifically, GLIB "distributed a fact sheet describing the
members' intentions" and, in a previous parade, had "marched behind
a shamrock-strewn banner with the simple inscription 'Irish
American Gay, Lesbian and Bisexual Group of Boston.'"
Id.,
at 570. "[A] contingent marching behind the organization's banner,"
we said, would clearly convey a message.
Id., at 574.
Indeed, we expressly distinguished between the members of GLIB, who
marched as a unit to express their views about their own sexual
orientation, on the one hand, and homosexuals who might participate
as individuals in the parade without intending to express anything
about their sexuality by doing so.
Id., at 572-573.
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" produced 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
695
carry a banner or a sign; he did not distribute any factsheet;
and he expressed no intent to send any message. If there is any
kind of message being sent, then, it is by the mere act of joining
the Boy Scouts. Such an act does not constitute an instance of
symbolic speech under the First Amendment.21
It is true, of course, that some acts are so imbued with
symbolic meaning that they qualify as "speech" under the First
Amendment. See
United States v.
O'Brien, 391 U. S. 367, 376
(1968). At the same time, however, "[w]e cannot accept the view
that an apparently limitless variety of conduct can be labeled
'speech' whenever the person engaging in the conduct intends
thereby to express an idea."
Ibid. Though participating in
the Scouts could itself conceivably send a message on some level,
it is not the kind of act that we have recognized as speech. See
Dallas v.
Stanglin, 490 U. S. 19, 24-25 (1989).22
Indeed, if merely joining a group did constitute symbolic speech;
and such speech were attributable to the group being joined; and
that group has the right to exclude that speech (and hence, the
right to exclude that person from joining), then the right of free
speech effectively becomes a limitless right to exclude for every
organization, whether or not it engages in
any expressive
activities. That cannot be, and never has been, the law.
21 The majority might have argued (but it did not) that Dale had
become so publicly and pervasively identified with a position
advocating the moral legitimacy of homosexuality (as opposed to
just being an individual who openly stated he is gay) that his
leadership position in BSA would necessarily amount to using the
organization as a conduit for publicizing his position. But as
already noted, when BSA expelled Dale, it had nothing to go on
beyond the one newspaper article quoted above, and one newspaper
article does not convert Dale into a public symbol for a message.
BSA simply has not provided a record that establishes the factual
premise for this argument.
22 This is not to say that Scouts do not engage in expressive
activity. It is only to say that the simple act of joining the
Scouts-unlike joining a parade-is not inherently expressive.
696
The only apparent explanation for the majority's holding, then,
is that homosexuals are simply so different from the rest of
society that their presence alone-unlike any other
individual's-should be singled out for special First Amendment
treatment. Under the majority's reasoning, an openly gay male is
irreversibly affixed with the label "homosexual." That label, even
though unseen, communicates a message that permits his exclusion
wherever he goes. His openness is the sole and sufficient
justification for his ostracism. Though unintended, reliance on
such a justification is tantamount to a constitutionally prescribed
symbol of inferiority.23 As counsel for BSA remarked, Dale "put a
banner around his neck when he ... got himself into the newspaper
.... He created a reputation ... He can't take that banner off. He
put it on himself and, indeed, he has continued to put it on
himself." See Tr. of Oral Arg. 25.
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-
23 See Yoshino, Suspect Symbols: The Literary Argument for
Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753,1781-1783
(1996).
697
mission of some person as a member or at odds with the
appointment of a person to a leadership position in the group.
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
immoralbut 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-
24 For John Doe to make a public statement of his sexual
orientation to the newspapers may, of course, be a matter of great
importance to John Doe. Richard Roe, however, may be much more
interested in the weekend weather forecast. Before Dale made his
statement at Rutgers, the Scoutmaster of his troop did not know
that he was gay. App. 465.
698
gious minorities, or any other discrete groUp.25 Surely the
organizations are not forced by antidiscrimination laws to take any
position on the legitimacy of any individual's private beliefs or
private conduct.
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
25 The majority simply announces, without analysis, that Dale's
participation alone would "force the organization to send a
message."
Ante, at 653. "But ... these are merely conclusory
words, barren of analysis .... For First Amendment principles to be
implicated, the State must place the citizen in the position of
either apparently or actually 'asserting as true' the message."
Wooley v.
Maynard, 430 U. S. 705, 721 (1977)
(REHNQUIST, J., dissenting).
26BSA also argues that New Jersey's law violates its right to
"intimate association." Brief for Petitioners 39-47. Our cases
recognize a substantive due process right "to enter into and
carryon certain intimate or private relationships."
Rotary
Club, 481 U. S., at 545. As with the First Amendment right to
associate, the State may not interfere with the selection of
individuals in such relationships.
Jaycees, 468 U. S., at
618. Though the precise scope of the right to intimate association
is unclear, "we consider factors such as size, purpose,
selectivity, and whether others are excluded from critical aspects
of the relationship" to determine whether a group is sufficiently
personal to warrant this type of constitutional protection.
Rotary Club, 481 U. S., at 546. Considering BSA's size, see
supra, at 697, its broad purposes, and its non selectivity,
see
supra, at 666, it is impossible to conclude that being a
member of the Boy Scouts ranks among those intimate relationships
falling within this right, such as marriage, bearing children,
rearing children, and cohabitation with relatives.
Rotary
Club, 481 U. S., at 545.
699
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;3o
27 In
Loving, the trial judge gave this explanation of
the rationale for Virginia's antimiscegenation statute: "'Almighty
God created the races white, black, yellow, malay and red, and he
placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages.
The fact that he separated the races shows that he did not intend
for the races to mix.''' 388 U. S., at 3.
28 Brief for American Psychological Association as
Amicus
Curiae 8. 29 See n. 3,
supra.
30 The significance of that opinion is magnified by comparing it
with Justice Blackmun's vote 10 years earlier in
Doe v.
Commonwealth's Attorney for City of Richmond, 425 U. S. 901
(1976). In that case, six Justicesincluding Justice Blackmun-voted
to summarily affirm the District Court's rejection of the same due
process argument that was later rejected in
Bowers. Two
years later, furthermore, Justice Blackmun joined in a dissent in
University of Missouri v.
Gay Lib, 434 U. S. 1080 (1978).
In that case, the university had denied recognition to a student
gay rights organization. The student group argued that in doing so,
the university had violated its free speech and free association
rights. The Court of
700
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
Appeals agreed with that argument. A dissent from denial of
certiorari, citing the university's argument, suggested that the
proper analysis might well be as follows:
"[T]he question is more akin to whether those suffering from
measles have a constitutional right, in violation of quarantine
regulations, to associate together and with others who do not
presently have measles, in order to urge repeal of a state law
providing that measle sufferers be quarantined."
Id., at
1084 (REHNQUIST, J., dissenting).
31 Powell v.
State, 270 Ga. 327, 510 S. E. 2d 18
(1998).
32 See,
e. g., Bradsher, Big Carmakers Extend
Benefits to Gay Couples, New York Times, June 9, 2000, p.
C1; Marquis, Gay Pride Day is Observed by About 60 C. 1. A.
Workers, New York Times, June 9, 2000, p. A26; Zernike, Gay Couples
are Accepted as Role Models at Exeter, New York Times, June 12,
2000, p. A18.
701
Jersey's interest in forbidding discrimination on all these
bases by those furnishing public accommodations is, as JUSTICE
STEVENS indicates, acknowledged by many to be beyond question. The
fact that we are cognizant of this laudable decline in
stereotypical thinking on homosexuality should not, however, be
taken to control the resolution of this case.
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 First Amendment protects expressive association:
individuals have a right to join together to advocate opinions free
from government interference. See
Roberts v.
United
States Jaycees, 468 U. S. 609, 622
(1984). BSA has disclaimed any argument that Dale's past or future
actions, as distinct from his unapologetic declaration of sexual
orientation, would justify his exclusion from BSA. See Tr. of Oral
Arg. 12-13.
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-
702
sive association into an easy trump of any antidiscrimination
law.*
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 First Amendment analysis if such
a case comes to us for decision.
* 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
First Amendment. This case is thus unlike
Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S.
557 (1995).
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