[p. 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. However, to determine whether a group is protected by the First Amendment's expressive associational right, it must first be determined whether the group engages in "expressive association." [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.

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. Justice Stevens wrote a dissent in which Justices Souter, Ginsburg, and Breyer joined. In that case, petitioners John Hurley and the South Boston Allied War Veterans Council ran a privately operated St. Patrick's Day parade. Rptr. [16] In Stevens' opinion, the Court's decision interfered with New Jersey's experiment. [9] Also representing Dale on a pro bono basis was the New York-based law firm Cleary Gottlieb Steen & Hamilton.[3]. L. Rev.

The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill and that it and "teaches that homosexual conduct is not morally straight and does not want to promote homosexual conduct as a legitimate form of behavior.". 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." "'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." Scoutmaster Handbook (1990) (reprinted in App. 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- [p. 693] havior." It finds that BSA in fact "'teach[es] that homosexual conduct is not morally straight.'" [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 [p. 691] religion to another. 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. 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. The majority's argument relies exclusively on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). We found the State's purpose of eliminating discrimination is a compelling state interest that is unrelated to the suppression of ideas. [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"). 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. The Scout Oath and the Scout Law, which set forth the Scouts' central tenets, assist in this goal.

16 ^ .

The law broadly protects the opportunity of all persons to obtain the advantages and privileges "of any place of public accommodation."

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting opinion). [15] Third, it is not sufficient merely to articulate some connection between the group's expressive activities and its exclusionary policy. "He remembers dating girls and even laughing at homophobic jokes while at school, only admitting his homosexuality during his second year at Rutgers.

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 [p. 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."

Ibid. He observed that "every state law prohibiting discrimination is designed to replace prejudice with principle." It relied heavily upon an earlier case, Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). The undisclosed 1978 policy certainly adds nothing to the actual views disseminated to the Scouts.

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)). Dozens of Scout units throughout the State are sponsored by public agencies, such as schools and fire departments, that employ such role models. Ante, at [p. 686] 653. [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. v. james dale no.

His openness is the sole and sufficient justification for his ostracism. 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." By 1993, however, the policy had changed: "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. James Dale was a Boy Scout since he was eight years old. 8. App. [9] Indeed, BSA had filed amicus briefs before this Court in two earlier right to associate cases (Roberts v. United States Jaycees, 468 U.S. 609 (1984), and Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)) pointing to these very cases; it was clearly on notice by 1990 that it might well be subjected to state public accommodation antidiscrimination laws, and that a court might one day reject its claimed right to associate. Thus, Justice Stevens could not understand the majority's rule under which it deferred to the organization's statement of its expressive goal and inquired no further. 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. Id., at 133. An association that seeks to transmit such a system of values engages in expressive activity. 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 [p. 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. "[U]nless one is prepared to turn the right to associate into a free pass out of antidiscrimination laws, an independent inquiry is a necessity. [1] In a five to four decision, the Supreme Court ruled that opposition to homosexuality is part of BSA's "expressive message" and that allowing homosexuals as adult leaders would interfere with that message.[2]. Thus, "freedom of association ... plainly presupposes a freedom not to associate.". If there is any kind of message being sent, then, it is by the mere act of joining the Boy Scouts. ", One of those statements, a brief attempt in 1991 and 1992 to link its exclusionary membership to the terms "morally straight" and "clean," was particularly ineffective for Justice Stevens.

Nor does it require them to abandon their classification system or admit members who do not reflect a cross section of the community." Chief Justice Rehnquist: ...we must inquire whether the First Amendment has been violated?

See United States v. O'Brien, 391 U.S. 367, 376 (1968).

Id., at 196–197 (Burger, C. J., concurring); Loving v. Virginia, 388 U.S. 1, 3 (1967). Chief Justice Rehnquist, author of the majority opinion, from oyez.org, Justice Stevens, author of the dissenting opinion, from oyez.org, Ashley Taylor, Senior Division, Individual Website. This is not to say that Scouts do not engage in expressive activity.

§23; see also App. Though the majority mistakenly treats this statement as going to the right to associate, it actually refers to a free speech claim.
"A. Second, we found it relevant that GLIB's message "would likely be perceived" as the parade organizers' own speech. 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.

And in balancing the competing considerations we conclude that the state interest embodied New Jersey’s public accommodations law do not outweigh the severe intrusion on the Boy Scouts' rights to freedom of expressive association. v. Corsi, 326 U.S. 88, 98 (1945) (concurring opinion).

It is clear from the record that the mission of the Boy Scouts is to instill a system of values in young boys.

Justice Stevens wrote, "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. The majority pretermits this entire analysis. The 1993 policy statement, in other words, was not based on any expressive activity or on any moral view about homosexuality. 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. Id., at 66–67 (emphasis in original). 315–316. Id., at 574.

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. This page was last edited on 22 December 2017, at 23:19. 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. 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.

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.

Id., at 572–573.



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