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. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.
Held:
(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas) Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is
not absolute; it can be overridden by regulations adopted to serve compelling state interests.
Dissent:
(Stevens, joined by Souter, Ginsburg, & Breyer) 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.” 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.”
The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” 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 the Boy Scouts.
